―1. On the short ground that the impugned order was
passed on the very first date without affording an
opportunity to the Appellants-State to file a para-
wise reply to the writ petition, the impugned order
dated 4th March, 2021 passed in W.P.(C) No.7447 of
2021 is hereby set aside and the said writ petition is
remitted to the Roster Bench of the learned Single
Judge, where it will be listed for directions on 10th
May, 2023.
He further submitted that the Finance Department
Resolution dated 13.02.2025 has clarified the
position by deleting the words ―in a single cadre‖ as
mentioned in Finance Department Resolution dated
06.02.2013. He submitted that similar issue has
already been decided by a Division Bench of this
Court in W.P.(C) No.28074 of 2019 (State of Odisha
and others Vrs. Shiba Charan Bal), disposed of on
06.03.2020, wherein order dated 26.07.2018
passed by the Odisha Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No.2328(C) of 2017
has been affirmed.
3. Sri Shantanu Das, learned Additional Standing
Counsel appearing for the opposite parties-State
seeks a day's accommodation to advance his reply
arguments.
4. List this matter tomorrow (23.07.2025) to be taken
up at 2.00 P.M.‖
4.1. Accordingly the matter being listed on 23.07.2025, the
arguments were advanced by counsel for both sides and
hearing was concluded.
4.2. The matter was kept reserved for preparation and
pronouncement of judgment.
5. Ms. Babita Kumari Pattanaik, Advocate appearing for
the petitioner assisting Sri Manoja Kumar Khuntia,
learned Advocate submitted that having joined as Junior
Clerk on 14.06.1978 at Upper Kolab Dam Circle, the
petitioner on getting transferred on 29.09.1986 worked
in Eastern Circle, Cuttack and allowed to retire with
effect from 31.07.2019 on attaining age of
superannuation.
5.1. It is contended that the petitioner in the capacity of
Junior Clerk was granted time-bound advancement
taking into account the date of appointment as
14.06.1978. As per RACPS on completion of 10, 20 and
30 years of service in a post, she is entitled to 1st, 2nd
and 3rd upgradations. The petitioner has completed her
30 years of service on 14.06.2008 and she was entitled
to 3rd RACPS in terms of the Finance Department
Resolution dated 06.02.2013, with effect from
01.01.2013. When for all practical purposes the date of
entry into Government service has been treated as
14.06.1978 (as reflected in the Service Book), non-grant
of 3rd RACPS by fixing her grade pay at Rs.4,600/- in the
wake of revision of grade pay in CSL Cadre (Ministerial)
of Medium IP in the Department (Office) of Water
Resources (EIC-Medium IP) inter alia from Rs.4,200/-
(feeder post of Head Clerk) to Rs.4,600/- (Head
Assistant, 1st Promotional Post) vide Finance Department
by Notification No25323-- PCC-Meet-1/2012 (pt.)/F.,
dated 19.09.2015, is contested vehemently by the
petitioner in this writ petition.
5.2. Stemming on subsequent development, i.e., Finance
Department Resolution No.5073-- FIN-CS1-APPL-0001-
2024/F., dated 13.02.2025, which fact has been brought
on record by way of an interlocutory application, being
I.A. No.11608 of 2025, it is arduously argued that when
the petitioner was granted the benefit of 3rd financial
upgradation in terms of Revised Assured Career
Progression Scheme under the Odisha Revised Scales of
Pay Rules, 2008, effective from 01.01.2013, having been
accrued on completion of 30 years of service
commencing from 13/14.06.1978 and she was in receipt
of Modified Assured Career Progression (MACP) on
29.09.2016 with grade pay of Rs.4,600/-, merely
because she got promotion after 30 years of service and
allowed to retire on superannuation, the opposite parties
could not have adhered to revision of grade pay adhering
to Finance Department by Notification No25323-- PCC-
Meet-1/2012 (pt.)/F., dated 19.09.2015.
6. Sri Shantanu Das, learned Additional Standing Counsel,
though conceded that despite opportunity granted by the
Division Bench in their writ appeal vide Order dated
20.03.2023 passed in W.A. No.1026 of 2022 filed against
the order dated 04.03.2021 of the learned Single Judge
in the present matter, the opposite parties did not
choose to file any counter affidavit, submitted that the
impugned action of the opposite parties in refixing the
revised pay as is available in consonance with the
Finance Department by Notification No.25323-- PCC-
Meet-1/2012 (pt.)/F., dated 19.09.2015 could not be
questioned, as the competent authority has acted within
the scope of the statutory notification.
6.1. He would submit that as is manifest from the entry in
Service Book (Annexure-3) that the petitioner joined in
the promotional post of Senior Clerk on 23.12.2011 on
the strength of Office Order No.12 of 2012-13, and
exercised option for fixation of promotional pay with
effect from 01.06.2012, by re-fixing her grade pay
attached to Senior Clerk no flaw could be attributed
when the authorities have taken correctional measure.
6.2. Such action being in conformity with the Finance
Department Notification No.25323-- PCC-Meet-1/2012
(pt.)/F., dated 19.09.2015, he urged not to disturb the
fixation of grade pay and made fervent request to
dismiss the writ petition.
7. For ready reference the RACPS, 2013, as it existed prior
to Resolution dated 13.02.2025, is given hereunder:
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 up-gradation under the Scheme
are given in Annexure-1.
By order of the Governor
Sd/-
REVISED ASSURED CAREER PROGRESSION SCHEME
(RACPS):
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.
2. 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.
3. There shall be a Screening Committee to decide the
eligibility of the persons for upgradation under
RACPS. The Screening Committee shall follow a time
schedule and meet twice in a financial year,
preferably in the first week of January and first
week of July every year for advance processing of
the cases maturing in that half year. Accordingly,
cases maturing during the first-half i.e. April to
September of a particular financial year shall be
taken up for consideration by the Committee in the
first week of January. Similarly, the Screening
Committee meeting in the first week of July shall
process the cases that would be maturing during the
second-half i.e. October to March of the same
financial year.
4. RACPS shall be permissible in case of those
employees only after regulation of their pay under
O.R.S.P. Rules, 2008. On introduction of RACPS, the
ACP Scheme as under O.R.S.P. Rules, 2008 shall
cease to operate.
5. The manner of fixation of pay on promotion shall be
applicable while fixing the pay under RACPS. An
employee can opt to get the pay fixed under RACPS
after accrual of his next increment in existing Pay
Band with Grade Pay within one month from the
date of issue of RACPS order in his/her favour in the
pro forma appended as Fourth Schedule of O.R.S.P.
Rules, 2008; else the pay of the employee shall be
fixed from the date of effect of RACP. The next
increment due shall be 12 months from the date of
such fixation.
6. On grant of financial upgradation under the Scheme,
there shall be no change in the designation,
classification or status. However, financial and
certain other benefits which are linked to the pay
drawn by an employee such as HBA, allotment of
Government accommodation may be permitted.
7. Financial upgradation under the RACPS shall be
purely personal to the employee and shall have no
relevance to his position of seniority in the grade. As
such, there shall be no stepping up of
pay/antedation of increment between Senior and
Junior after regulation of pay under RACPS.
8. The Pay Band PB-3 of Rs.15,600-39,100/- with
Grade Pay of Rs.5400/- being the Group-A Entry
Grade Pay Band shall not be allowed under RACPS
to an employee in Pay Band PB-2. For example, if an
employee in the Pay Band PB-2 i.e. Rs.9,300-
34,800/- with Grade Pay of Rs.4600/- gets financial
upgradation under RACPS, he shall be entitled to get
his/her pay fixed in the Pay Band PB-2 i.e.
Rs.9,300-34,800/- with Grade Pay of Rs.5400/-
instead of Pay Band PB-3 i.e. Rs.15,600-39,100/-
with Grade Pay of Rs.5400/-.
9. There shall be no further financial upgradation
under RACPS, if an employee has already availed
three financial upgradations by way of
RACPS/Promotion.
10. Benefit of pay fixation available at the time of
regular promotion shall also be allowed at the time
of financial upgradation under the Scheme, which
means the pay shall be raised by 3% of the total of
pay in the Pay Band and the Grade Pay drawn
before such upgradation. The employees of the cadre
having promotional hierarchy will get the Grade Pay
of the promotional post. The employees in isolated/
ex-cadre posts not having any promotional hierarchy
will get the next higher Grade Pay as per the first
schedule of ORSP Rules, 2008 with the
interpolations, if any introduced subsequently. In
case the new Grade Pay corresponds to a different
Pay Band, the employee will get the Pay Band
corresponding to the revised Grade Pay. There shall,
however, be no further fixation of pay at the time of
regular promotion.
11. The RACPS shall also be applicable to work charged
employees, only if their service conditions are
comparable with the staff of regular establishment.
12. The RACPS is directly applicable only to State
Government employees. It will not get automatically
extended to employees of State PSUs/Autonomous/
Statutory Bodies under the administrative control of
a Department. Keeping in view the financial
implications involved, a conscious decision in this
regard shall have to be taken by the respective
Government Body/ Board of Directors as well as the
Administrative Department concerned and wherever
it is proposed to adopt the RACPS, prior concurrence
of Financial Department shall be obtained.
13. If a financial upgradation under the RACPS is not
allowed after 10 years in a Grade Pay and is
deferred for the reason an employee being unfit or
due to departmental proceedings, his case will be
reviewed in subsequent years. In the matter of
disciplinary / penal proceedings, grant of benefit
under the RACPS shall be subject to rules /
guidelines governing normal promotion. Such cases
shall, therefore, be regulated under the provisions of
the OCS (CCA) Rules, 1962 and instructions issued
thereunder.
14. The RACPS contemplates mere placement on
personal basis in the Grade Pay and pay scale of
the higher post and shall not amount to actual
functional promotion of the employees concerned.
Therefore, no reservation orders / roster shall apply
to the RACPS. However, as usual the rules of
reservation in promotion shall be ensured at the time
of regular promotion. For this reason, it may not be
mandatory to associate members of SC/ST in the
Screening Committee meant to consider cases for
grant of financial upgradation under the Scheme.
15. Pay drawn in the Pay Band and the Grade Pay
allowed under the RACPS shall be the basis for
determining the terminal benefits in respect of the
retiring employee.
16. If a regular promotion in due course is refused by the
employee before becoming entitled to a financial
upgradation, then there shall be no financial
upgradation under RACPS as the employee has not
been stagnated due to lack of promotional
opportunities. If, however, financial upgradation has
been allowed due to stagnation and the employee
refuses the subsequent promotion, it shall not be a
ground to withdraw the financial upgradation. He
shall, however, not be eligible to be considered for
further financial upgradation till he agrees to be
considered for promotion again and the next
financial upgradation shall also be deferred to the
extent of period of debarment due to such refusal.
17. Employees on deputation need not revert to the
parent Department for availing the benefit of
financial upgradation under the RACPS. They may
exercise a fresh option to draw the pay in the Pay
Band and the Grade Pay of the post held by them or
the pay plus Grade Pay admissible to them under
the RACPS, whichever is beneficial like the regular
employee in the parent cadre had they not been
deputed.
18. Assured Career Progression (ACP) availed under
ORSP Rules, 2008 shall not be taken into account
while considering the RACPS in favour of an
employee. But, no pay fixation shall be allowed by
extending the benefit of 3% of basic pay and Grade
Pay to the existing Pay but only the Grade Pay as
applicable shall be allowed while giving RACPS.
8. At the outset it is felt expedient to have overview of the
terms "promotion" and "upgradation".
8.1. The legal position regarding the distinction between
upgradation and promotion is well-settled. In Union of
India Vrs. Pushpa Rani, (2008) 9 SCC 24, the Supreme
Court had examined and explained the difference thus:
―In legal parlance, upgradation of a post involves transfer
of a post from lower to higher grade and placement of the
incumbent of that post in the higher grade. Ordinarily,
such placement does not involve selection but in some of
the service rules and/or policy framed by the employer for
upgradation of posts, provision has been made for denial
of higher grade to an employee whose service record may
contain adverse entries or who may have suffered
punishment. The word ‗promotion' means advancement or
preferment in honour, dignity, rank, grade. Promotion thus
not only covers advancement to higher position or rank
but also implies advancement to a higher grade. In service
law, the word ‗promotion' has been understood in wider
sense and it has been held that promotion can be either to
a higher pay scale or to a higher post.‖
8.2. The decision in Union of India Vrs. Pushpa Rani, (2008) 9
SCC 24 was discussed in Bharat Sanchar Nigam Limited
Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 and
ruling has been enunciated as under:
―In Pushpa Rani, (2008) 9 SCC 242, this Court while
considering a scheme contained in the Letter dated
09.10.2003 held that it provided for a restructuring
exercise resulting in creation of additional posts in most of
the cadres and there was a conscious decision to fill up
such posts by promotion from all eligible and suitable
employees and, therefore, it was a case of promotion and,
consequently, the reservation rules were applicable.‖
9. It has been set forth in Bharat Sanchar Nigam Limited
Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 as
follows:
―29. On a careful analysis of the principles relating to
promotion and upgradation in the light of the
aforesaid decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade
or both and is a step towards advancement to a
higher position, grade or honour and dignity.
Though in the traditional sense promotion
refers to advancement to a higher post, in its
wider sense, promotion may include an
advancement to a higher pay scale without
moving to a different post. But the mere fact
that both-- that is, advancement to a higher
position and advancement to a higher pay
scale-- are described by the common term
―promotion‖, does not mean that they are the
same. The two types of promotion are distinct
and have different connotations and
consequences.
(ii) Upgradation merely confers a financial benefit
by raising the scale of pay of the post without
there being movement from a lower position to a
higher position. In an upgradation, the
candidate continues to hold the same post
without any change in the duties and
responsibilities but merely gets a higher pay
scale.
(iii) Therefore, when there is an advancement to a
higher pay scale without change of post, it may
be referred to as upgradation or promotion to a
higher pay scale. But there is still difference
between the two. Where the advancement to a
higher pay scale without change of post is
available to everyone who satisfies the
eligibility conditions, without undergoing any
process of selection, it will be upgradation. But
if the advancement to a higher pay scale
without change of post is as a result of some
process which has elements of selection, then it
will be a promotion to a higher pay scale. In
other words, upgradation by application of a
process of selection, as contrasted from an
upgradation simpliciter can be said to be a
promotion in its wider sense, that is,
advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to
all positions in a category, who have completed
a minimum period of service. Upgradation can
also be restricted to a percentage of posts in a
cadre with reference to seniority (instead of
being made available to all employees in the
category) and it will still be an upgradation
simpliciter. But if there is a process of selection
or consideration of comparative merit or
suitability for granting the upgradation or
benefit of advancement to a higher pay scale, it
will be a promotion. A mere screening to
eliminate such employees whose service
records may contain adverse entries or who
might have suffered punishment, may not
amount to a process of selection leading to
promotion and the elimination may still be a
part of the process of upgradation simpliciter.
Where the upgradation involves a process of
selection criteria similar to those applicable to
promotion, then it will, in effect, be a promotion,
though termed as upgradation.
(v) Where the process is an upgradation
simpliciter, there is no need to apply the rules
of reservation. But where the upgradation
involves a selection process and is therefore a
promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres
resulting in creation of additional posts and
filling of those vacancies by those who satisfy
the conditions of eligibility which includes a
minimum period of service, will attract the rules
of reservation. On the other hand, where the
restructuring of posts does not involve creation
of additional posts but merely results in some
of the existing posts being placed in a higher
grade to provide relief against stagnation, the
said process does not invite reservation.‖
9.1. See also, Rama Nand Vrs. Chief Secretary, Government of
NCT of Delhi, (2020) 6 SCR 19 = 2020 (II) OLR (SC) 487,
where it has been observed as follows:
―17. The reasons for coming to this conclusion is based
on the principles set out in the Bharat Sanchar
Nigam Limited Vrs. R. Santhakumari Velusamy,
(2011) 9 SCC 510. No doubt, sometimes there is a
fine distinction which arises in such cases, but, a
holistic view has to be taken considering the factual
matrix of each case. The consequence of
reorganisation of the cadre resulted in not only a
mere re-description of the post but also a much
higher pay scale being granted to the appellants
based on an element of selection criteria. We say so
as, at the threshold itself, there is a requirement of a
minimum 5 years of service. Thus, all Telephone
Operators would not automatically be eligible for the
new post. Undoubtedly, the financial emoluments,
as stated above, are much higher. The third
important aspect is that the appellants had to go
through the rigorous of a specialised training. All
these cannot be stated to be only an exercise of
merely re-description or reorganisation of the cadre.
On applying the test in BSNL case (supra), as per
sub-para (i) of paragraph 29, promotion may include
an advancement to a higher pay scale without
moving to a different post. In the present case, there
is a re-description of the post based on higher pay
scale and a specialised training. It is not a case
covered by sub-para (iii), as canvassed by learned
counsel for the appellants, where the higher pay
scale is available to everyone who satisfies the
eligibility condition without undergoing any process
of selection. The training and the benchmark of 5
years of service itself involve an element of selection
process. Similarly, it is not as if the requirement is
only a minimum of 5 years of service by itself, so as
to cover it under sub-para (iv).
18. We have already observed that the complete factual
contours of the difference between the two posts
would have to be examined in the given factual
situation and the triple criteria of minimum 5 years
of service, a specialised training and much higher
financial emoluments leaves us in no manner of
doubt. What was done has to be considered as a
promotion disentitling the appellants to the benefits
of the ACP Scheme. As the very objective of the ACP
Scheme, as set out, is ―to deal with the problem of
genuine stagnation and hardship faced by the
employees due to lack of adequate promotional
avenues.‖
9.2. In Union of India Vrs. M.V. Mohanan Nair, (2020) 7 SCR
851, describing object behind ACP (Assured Career
Progression) versus MACP (Modified Assured Career
Progression) with reference to policy and wisdom of Pay
Commission, it has been stated as follows:
―28. The object behind the MACP Scheme is to provide
relief against the stagnation. If the arguments of the
respondents are to be accepted, they would be
entitled to be paid in accordance with the grade pay
offered to a promotee; but yet not assume the
responsibilities of a promotee. As submitted on
behalf of Union of India, if the employees are entitled
to enjoy Grade Pay in the next promotional
hierarchy, without the commensurate responsibilities
as a matter of routine, it would have an adverse
impact on the efficiency of administration.
29. The change in policy brought about by supersession
of ACP Scheme with the MACP Scheme is after
consideration of all the disparities and the
representations of the employees. The Sixth Central
Pay Commission is an expert body which has
comprehensively examined all the issues and the
representations as also the issue of stagnation and
at the same time to promote efficiency in the
functioning of the departments. MACP Scheme has
been introduced on the recommendation of the Sixth
Central Pay Commission which has been accepted
by the Government of India. After accepting the
recommendation of the Sixth Central Pay
Commission, the ACP Scheme was withdrawn and
the same was superseded by the MACP Scheme
with effect from 01.09.2008. This is not some
random exercise which is unilaterally done by the
Government, rather, it is based on the opinion of the
expert body-- Sixth Central Pay Commission which
has examined all the issues, various representations
and disparities. Before making the recommendation
for the Pay Scale/Revised Pay Scale, the Pay
Commission takes into consideration the existing
pay structure, the representations of the government
servants and various other factors after which the
recommendations are made. When the expert body
like Pay Commission has comprehensively examined
all the issues and representations and also took note
of inter-departmental disparities owing to varying
promotional hierarchies, the court should not
interfere with the recommendations of the expert
body. When the Government has accepted the
recommendation of the Pay Commission and has
also implemented those, any interference by the
court would have a serious impact on the public
exchequer.
30. Observing that it is the function of the Government
which normally acts on the recommendations of the
Pay Commission which is the proper authority to
decide upon the issues, in Union of India Vrs. P.V.
Hariharan, (1997) 3 SCC 568, it was held as under:
‗5. *** It is the function of the Government which
normally acts on the recommendations of a Pay
Commission. Change of pay scale of a category
has a cascading effect. Several other categories
similarly situated, as well as those situated
above and below, put forward their claims on
the basis of such change. The Tribunal should
realise that interfering with the prescribed pay
scales is a serious matter. The Pay
Commission, which goes into the problem at
great depth and happens to have a full picture
before it, is the proper authority to decide upon
this issue. Very often, the doctrine of ‗equal
pay for equal work' is also being
misunderstood and misapplied, freely revising
and enhancing the pay scales across the
board. We hope and trust that the Tribunals
will exercise due restraint in the matter. Unless
a clear case of hostile discrimination is made
out, there would be no justification for
interfering with the fixation of pay scales. We
have come across orders passed by Single
Members and that too quite often
Administrative Members, allowing such claims.
These orders have a serious impact on the
public exchequer too. It would be in the fitness
of things if all matters relating to pay scales,
i.e., matters asking for a higher pay scale or an
enhanced pay scale, as the case may be, on
one or the other ground, are heard by a Bench
comprising at least one Judicial Member. ***'
31. Observing that the decision of expert bodies like the
Pay Commission is not ordinarily subject to judicial
review, in State of U.P. Vrs. U.P. Sales Tax Officers
Grade II Association, (2003) 6 SCC 250, the Supreme
Court held as under:
‗11. There can be no denial of the legal position that
decision of expert bodies like the Pay
Commission is not ordinarily subject to judicial
review obviously because pay fixation is an
exercise requiring going into various aspects of
the posts held in various services and nature of
the duties of the employees. ***.'
32. In Secretary, Government (NCT of Delhi) Vrs. Grade-
1 Officers Association, (2014) 13 SCC 296, the
Supreme Court refused to interfere with the ACP
Scheme as it would violate Government policy and
since exercise of judicial review would not be proper,
upheld the ACP Scheme and the conditions therein.
33. In State of Tamil Nadu Vrs. S. Arumugham, (1998) 2
SCC 198, the Supreme Court has observed that the
Government has the right to frame a policy to ensure
efficiency and proper administration and to provide
to suitable avenues for promotion to officers working
in different department. The Supreme Court has
further observed that the Tribunal cannot substitute
its own views for the views of the Government or
direct new policy based on the views of Tribunal.
34. Observing that fixation of pay and determination of
responsibilities is a complex matter which is for the
executive to take a decision, the courts should
approach such matters with restraint, in State of
Haryana Vrs. Haryana Civil Secretariat Personal
Staff Association, (2002) 6 SCC 72, the Supreme
Court held as under:
‗10. It is to be kept in mind that the claim of equal
pay for equal work is not a fundamental right
vested in any employee though it is a
constitutional goal to be achieved by the
Government. Fixation of pay and determination
of parity in duties and responsibilities is a
complex matter which is for the executive to
discharge. While taking a decision in the
matter, several relevant factors, some of which
have been noted by this Court in the decided
case, are to be considered keeping in view the
prevailing financial position and capacity of the
State Government to bear the additional
liability of a revised scale of pay. *** That is not
to say that the matter is not justiciable or that
the courts cannot entertain any proceeding
against such administrative decision taken by
the Government. The courts should approach
such matters with restraint and interfere only
when they are satisfied that the decision of the
Government is patently irrational, unjust and
prejudicial to a section of employees and the
Government while taking the decision has
ignored factors which are material and relevant
for a decision in the matter. Even in a case
where the court holds the order passed by the
Government to be unsustainable then
ordinarily a direction should be given to the
State Government or the authority taking the
decision to reconsider the matter and pass a
proper order. The court should avoid giving a
declaration granting a particular scale of pay
and compelling the Government to implement
the same. ***.'
35. The prescription of Pay Scales and incentives are
matters where decision is taken by the Government
based upon the recommendation of the expert bodies
like Pay Commission and several relevant factors
including financial implication and court cannot
substitute its views. As held in Haryana Civil
Secretariat Personal Staff Association (2002) 6 SCC
72, the court should approach such matters with
restraint and interfere only when the court is
satisfied that the decision of the Government is
arbitrary. Even in a case where the court takes the
view that order/Scheme passed by the Government
is not an equitable one, ordinarily only a direction
could be given to the State Government or the
authority for consideration of the matter and take a
decision. In the present batch of cases where the
respondents are claiming financial upgradation in
the grade pay of promotional hierarchy, no grounds
are made out to show that the MACP Scheme
granting financial upgradation in the next grade pay
is arbitrary and unjust; warranting interference. The
implementation of the MACP Scheme is claimed to
have led to certain anomalies; but as pointed out
earlier, MACP Scheme itself is not under challenge.‖
9.3. Government of Odisha in Finance Department vide
Resolution No.3560-PCC(A)-49/2012/F, dated
06.02.2013, in consideration of Fitment Committee
recommendations, granted 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 Odisha Revised Scales of Pay Rules,
1998, and taking into account the uncertain
promotional avenues and career stagnation of the State
Government employees, decided to implement a career
advancement scheme to be known as "Revised Assured
Career Progression Scheme" (RACPS), with effect from
01.01.2013.
9.4. It can be culled out from the Revised Assured Career
Progression Scheme under the Odisha Revised Scales of
Pay Rules, 2008, that after the Central Government
introduced a Modified Assured Career Progression
Scheme (MACPS), the Government of Odisha in the
Finance Department vide Resolution dated 6th February
2013 allowed the RACPS for the State Government
employees with effect from 01.01.2013. In terms of the
said RACPS, three financial upgradations are made
available counted from the direct entry grade on
completion of 10, 20 and 30 years of service in a single
cadre in the absence of promotion. In terms thereof an
employee:
(a) on completion of 10 years of service in the entry
grade, will be considered for the first upgradation
under the RACPS;
(b) on completion of 20 years of service and having got
only one upgradation either by promotion or by
RACPS, will be considered for the second
upgradation;
(c) likewise on completion of 30 years of service and
having got two upgradations either by RACPS or
promotion or both will be considered for third
upgradation under the RACPS.
9.5. Per Paragraphs 2 and 4 of Annexure-I to the RACPS, it
has further been stipulated that the financial
upgradation under the RACPS would be admissible up to
the highest Grade Pay of Rs.7,600/- in the Pay Band--
PB-3 under the ORSP Rules, 2008 and shall be
permissible with effect from 1st January 2013 in case of
those employees only after regulation of their pay under
the ORSP Rules, 2008. It is stated that on introduction
of the RACPS, the ACP Scheme under the ORSP, 2008,
ceased to be operational.
9.6. Further, under Paragraph 4 thereof, it was stipulated
that there will be a Screening Committee to decide the
eligibility of persons for upgradation under RACPS.
Under paragraph 13, it was provided that if a financial
upgradation of the RACPS was not allowed due to
certain departmental proceedings, the case of the
concerned employee would be reviewed in the
subsequent years. In the event of disciplinary/penal
proceedings, the grant of benefit under the RACPS would
be subject to the rules/guidelines governing normal
promotion and would be governed under the provisions
of the Odisha Civil Services (Classification, Control and
Appeal) Rules, 1962.
10. With the above backdrop, from the pleadings on record,
submissions made and arguments advanced by counsel
for respective parties, essential facts necessary for
adjudicating as to whether the relief(s) claimed for "to
refix the pension of the petitioner after granting 3rd
financial upgradation in pay band-2 scale of pay of
Rs.9,300/- to 34,800/- with grade pay of Rs.4,600/-
under RACPS with effect from 01.01.2013 as per
Notification dated 19.09.2015" can be granted are that:
i. The petitioner joined in service as Lower Division
Clerk on 14.06.1978;
ii. Completed 30 years of service on 13.06.2008;
iii. Joined the promotional post of Senior Clerk on
23.12.2011 after completion of around 32-33 years
of service.
10.1. From the above factual position read with Paragraph 1 of
Annexure-I appended to the RACPS, it is explicit that
three financial upgradations shall be counted from the
direct entry grade on completion of 10, 20 and 30 years
of service in a single cadre in absence of promotion. The
words "in a single cadre" being deleted vide Finance
Department Resolution dated 13.02.2025 (which came
into force with retrospective effect from 01.01.2013), it
has become abundantly clear that the petitioner in
terms of RACPS under the Odisha Revised Scales of Pay
Rules, 2008 is entitled to 1st, 2nd and 3rd financial
upgradation as on 13.06.2008 having completed 10, 20
and 30 years of service from date of entry into the
service.
10.2. Notwithstanding the promotion being accorded to the
petitioner in the post of Senior Clerk in the year 2012,
that would not change the entitlement of the RACPS in
terms of the Odisha Revised Scales of Pay Rules, 2008,
as 10, 20 and 30 years of service as 30 years in service
got completed by 2008 itself.
10.3. This Court is persuaded to take into consideration the
treatment of ACP prior to 01.01.2013 for the purpose of
consideration of RACPS. It has been explained in the
decision of this Court in the case of State of Odisha Vrs.
Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839 that:
―A careful perusal of the RACPS introduced by the
resolution of the FD dated 6th February 2013 reveals that
even while introducing the said RACPS, the Government
considered the recommendations of the fitment committee
and the prevalent system of granting TBA under the ORSP
Rules, 1998 as well as the ACP under the ORSP Rules,
2008. The RACPS Resolution acknowledges in its
preamble that the Central Government had introduced the
MACPS. Therefore, something similar had to be introduced
in the State Government. Therefore, the RACPS was being
introduced as a Career Advancement Scheme. The
purpose of granting of financial upgradations was the
absence of a promotional avenue to an employee who has
remained over a long period of time in the same cadre.
There are as many as 18 paragraphs in the RACPS. The
grant of earlier benefits was clearly not seen as bar to
receipt of the benefit under the RACPS. For instance, in
Paragraph 18, it is clarified as under:
‗Assured Career Progression (ACP) availed under ORSP
Rules, 2008 shall not be taken into account while
considering the RACPS in favour of an employee.' ***‖
10.4. Regard may also be had to State of Odisha Vrs. Bihari
Lal, 2016 SCC OnLine Ori 333, wherein it has been
observed as follows:
―16. From the aforesaid analysis of the RACP of
Paragraph 10 it is clear that the pay will be fixed
under the ORSP Rules, 2008, but the modalities for
awarding RACP would be given under this Scheme.
On clear harmonious interpretation of Paragraph 10
it is found that the employees of cadre having
promotional hierarchy will get Grade Pay of the
promotional post and in case the new Grade Pay
corresponds to a different Pay Band, the employee
will get Pay Band corresponding to upgraded Grade
Pay. Here the learned Addl. Government Advocate
drew our attention to a clarification issued by the
State Government in the Finance Department on
20.1.2014 at Paragraph 12. According to said
Paragraph 12 the Grade Pay of promotional post
which belongs to other cadre shall not be allowed
under RACP Scheme even if the former post being
only the feeder post of that promotional post and the
RACP is confined to the cadre only. He further stated
that it has been further clarified in Paragraph 12
that such promotion shall be to an ex-cadre post and
the period of service for RACP on that promotional
post shall be reckoned afresh from the date of
joining in that post. Such clarification is absolutely
contrary to Paragraph 10 of the RACP Scheme
because Paragraph 12 has denied benefit of RACPS
to the employee entitled to promotional avenue under
recruitment Rules, whereas Paragraph 10 of RACPS
allow same. If clarification is contrary to
scheme, scheme has to be followed.
Clarification has no any legislative value,
whereas a scheme being in absence of rule has
got binding effect and to be followed by all in
the Administration. Clarification by State
Government has no legal force unless it is
converted to an Act, Rules, Regulation or
Scheme or culminates from such Act, Rules,
Regulation and Scheme. Be that as it may, the
Scheme is clear that the RACP is available to an
employee having promotional hierarchy. We are of
the view that opposite party No.1 as V.L.W. (Village
Level Worker) being not promoted to the post of
G.P.E.O. (Grama Panchayat Extension Officers) and
P.A. (Progress Assistants) is entitled to RACP
Scheme and as such ORSP Rules, 2008 will be
applicable to them.‖
10.5. The decision taken in the said Bihari Lal's case (supra),
was not disturbed by the Hon'ble Supreme Court of
India vide Order dated 23rd August, 2017 passed in
SLP(C) Diary No.20358 of 2017 (State of Odisha Vrs.
Bihari Lal Barik), which is as follows:
―Delay condoned.
We do not see any ground to interfere with the impugned
order.
The special leave petition is accordingly dismissed.
Pending applications, if any, shall also stand disposed
of.‖
10.6. So, it would now be established that an Office
Memorandum cannot "clarify" the RACPS Resolution
dated 6th February 2013 which is of a legislative
character. Vide, State of Odisha Vrs. Bikash Ranjan
Dash, 2021 SCC OnLine Ori 1839.
10.7. To implement directions in Bihari Lal Barik (supra), the
Finance Department brought forth the following
Resolution dated 13.02.2025:
―Government of Odisha
Finance Department
***
No.FIN-CS1-APPL-0001-2024/5073/F. Date 13.02.2025
Sub.: Revised Assured Career Progression Scheme
(RACPS) for the State Government Employees
effective under ORSP Rules, 2008-- Modifications.
1. Odisha Revised Scale of Pay Rules, 2008 was
implemented by the State Government w.e.f.
01.01.2006 vide Finance Department Notification
No.55244/F., dated 24.12.2008. Rule 14 of said
ORSP Rules, 2008 provided for Assured Career
Progression (ACP) Scheme for State Government
employees on completion of 15, 25 and 30 years of
service, in absence of promotion.
2. Thereafter, the ACP was substituted by Revised
Assured Career Progression (RACP) Scheme w.e.f.
01.01.2013 vide Finance Department Resolution
No.3560/F dated 06.02.2013; ensuring three
financial upgradations to an employee counting from
the direct entry grade on completion of 10, 20 and
30 years of service in a single cadre in absence of
promotion.
3. However, Revised Assured Career Progression
Scheme (RACPS) is now embroiled in litigations.
Hon'ble Court of Orissa, in Biharilal Barik case (i.e.
W.P(C) No.2831/2016), has directed implementation
of the RACP scheme in a particular manner.
4. Therefore, in exercise of power conferred under Rule
19 of the ORSP Rules, 2008, the Government is now
pleased to bring following modifications in Para-1
and Para-10 of the RACP Scheme guideline issued
vide this Department Resolution No.3560/F, dated
O6.02.2013.
(a) The words ―in a single cadre‖ mentioned in first
sentence of Para-1 of Annexure-I of Finance
Department Resolution No.3560/F., dated
06.02.2013 are hereby deleted
(b) Para-10 of Annexure-I of the said Resolution is
substituted by the following paragraph:
‗10. Benefit of pay fixation available at the time of
regular promotion shall also be allowed at the
time of financial upgradation under the
Scheme, which means the pay shall be raised
by 3% of total of pay in the Pay Band and the
Grade Pay drawn before such upgradation.
(i) The employees, who do not have any
promotional hierarchy in their existing cadre
nor have any scope for selection into a post of
another cadre carrying higher pay, will get next
higher Grade Pay available in the First
Schedule of the ORSP Rules, 2008.
(ii) The employees having only one or two
promotional hierarchies in their existing cadre
and not having any scope for selection into a
post of another cadre carrying higher pay, will
get Grade Pay attached to the promotional
post(s) of their existing cadre and, thereafter,
next higher Grade Pay available in the First
Schedule of the ORSP Rules, 2008.
(iii) The employees having three or more
promotional hierarchies in their existing cadre;
with/without having scope for selection into a
post of another cadre carrying higher pay, will
get Grade Pay attached to the promotional
posts in their existing hierarchy, up to three
promotions.
(iv) The employees who do not have any
promotional hierarchy in their existing cadre;
but have scope for selection into a post of
another cadre carrying higher pay, will get
Grade Pay of the post of that another cadre
subject to satisfying the eligibility criteria for
selection to the said post of the said another
cadre. However, if an employee does not
satisfy the eligibility criteria for selection to the
said post of the said another cadre, he will be
entitled for next higher Grade Pay available in
the First Schedule of the ORSP Rules, 2008.
In case the new Grade Pay corresponds to a
different Pay Band, the employee will get the Pay
Band corresponding to the revised Grade Pay. There
shall, however, be no further fixation of pay at the
time of regular promotion.'
5. Some illustrations are provided below on the RACP
entitlement of applicable Grade Pay under ORSP
Rules, 2008 as stated above in the modified Para-10
of Annexure-I of the said Resolution.
Sl. Nature of employees Applicable Illustration
No. RACP
1. (A) Employees who do Next higher Demonstrator of a
not have any Grade Pay college
promotional available in
hierarchy in their the First Demonstrators
existing cadre nor Schedule of are getting Grade
have any scope for the ORSP pay of Rs.4200
selection into a post Rules, 2008. in PB-2 (Rs.
of another cadre 9300- 34800)
carrying higher pay.
They have neither
any promotional
post in their own
cadre nor any
Scope for
selection to
another cadre
carrying higher
pay.
Therefore, they
will get following
GPs under RACP
Scheme on
completion of
10/ 20/ 30 years
of service subject
to fulfilling other
conditions
prescribed in F.D
Resolution
No.3560/F dated
06.02.2013.
1st RACP - GP of
Rs.4600
2nd RACP - GP
of Rs.4800
3rd RACP -GP of
Rs.5400
(in PB-2)
(B) Employees having Grade Pay
only one or two attached to
promotional the
hierarchies in their promotional
existing cadre and post(s).
not having any Thereafter,
scope for selection next higher
into a post of Grade Pay
another cadre available in
carrying higher pay. the First
Schedule of
the ORSP
Rules, 2008.
(C) Employees having Grade pay Junior Clerk
three or more attached to under Revenue &
promotional the DM Department
hierarchies in their promotional Junior Clerks are
existing cadre; with posts in getting Grade
or without having their Pay of Rs.1900
scope for selection existing in P.B-1
into a post of hierarchy, (Rs.5200- 20200)
another cadre up to three
carrying higher pay. promotions. They have
promotional
avenue to the
post of Senior
Clerk (Rs.2400),
Head Clerk
(Rs.4200) and
Office
Superintendent
(Rs.4600) in their
own cadre.
They also have
Scope for
selection to the
rank of ORS
(Rs.4600).
In such case, a
Junior Clerk is
not entitled for
G.P of ORS i.e.
Rs.4600 in 1st
RACP.
He will get
following GPs
under RACP
Scheme on
completion of
10/20/30 years
of service subject
to fulfilling all
other conditions
prescribed in F.D
Resolution
No.3560/F dated
06.02.2013.
1st RACP - GP of
Sr. Clerk
Rs.2400
2nd RACP- GP of
Head Clerk
Rs.4200
3rd RACP- GP of
Office Supdt.
Rs.4600
2. Employees who do not Grade Pay of VLW (Eligible for
have any promotional the post of selection to the post of
hierarchy in their that another GPEO)
existing cadre; but have cadre
scope for selection into a subject to VLWs are getting
post of another cadre satisfying Grade Pay of
carrying higher pay. the eligibility Rs.2000 in P.B-1
criteria for (Rs.5200- 20200)
selection to
the said post They have no
of the said promotional
another avenue in their
cadre. own cadre.
But they are
eligible for
consideration for
selection to the
post of GPEO
carrying GP of
Rs.4200 in P.B-2
(Rs.9300- 34800)
Therefore, they
will get following
Grade Pay under
RACP Scheme on
completion of
10/20/30 years
of service subject
to fulfilling all
conditions
prescribed in F.D
Resolution
No.3560/F dated
06.02.2013 and
also satisfying
the eligibility
criteria for
selection to the
post of GPEO
1st RACP -GP of
GPEO Rs.4200
2nd RACP - GP
of SDPO Rs.4600
3rd RACP -GP of
DPO Rs.4800 /
Rs.5400 (in PB-
2) w.e.f
19.06.2014
However, if VLW (Not eligible for
an employee selection to the post of
does not GPEO)
satisfy the
eligibility VLWs not satisfy the
criteria for eligibility criteria for
selection to selection to the post of
the said post GPEO, will get next
of the said higher Grade Pay
another available in the First
cadre, he Schedule of the ORSP
will be Rules, 2008 under
entitled for RACP Scheme on
next higher completion of 10/20/
Grade Pay 30 years of service.
available in
the First 1st RACP- GP. of
Schedule of Rs.2200
the ORSP
Rules, 2008 2nd RACP - GP of
Rs.2400
3rd RACP - GP of
Rs.2800
6. This modification shall take effect retrospectively
from the date of implementation of the RACP
Scheme, i.e. from 01.01.2013.
7. Pre-conditions to avail RACP benefits as stipulated
in Finance Department Resolution No.3560/F, dated
06.02.2013 shall remain unaltered.
8. Wherever required in accordance with this
modification, RACP benefit already sanctioned in
favour of any serving or retired/superannuated
employee shall be revised by revising their
pay/pension and arrear pay/pension shall be
disbursed to the employee concerned, as admissible,
irrespective of whether the employee has/had taken
shelter of Court or not. Disposal/withdrawal of the
Court case, if any, shall not be a pre-condition to
revise RACP benefit and/or to disburse arrear
pay/pension.
By order of the Governor
Sd/- 13.02.2025
Principal Secretary to Government‖
10.8. However, this Court wishes to take cognizance of
Government of Odisha in Finance Department
Resolution No. 26274-- FIN-PCC-MEET-0001/2012/F.,
dated 08.08.2013, which reads as under:
―Government of Odisha
Finance Department
****
RESOLUTION
No. 26274-- FIN-PCC-MEET-0001/2012/F.,
dated 08.08.2013
Sub.: Revision of grade pay in certain posts with Grade
Pay of Rs. 4200 and Rs.4600.
Under ORSP Rules, 2008, the revision of pay has
been effected on scale to scale basis with merger of
scales of pay under the ORSP Rules, 1998 in Pay
Bands. The pay bands constitute different Grade
Pay. In Grade Pay Rs.4200 pertaining to Pay Band
PB-2, seven pay scales existing under the ORSP
Rules, 1998 were merged. As a consequence of such
merger, some of the promotional scales existing
under the previous pay rule are now placed in Pay
Band PB-2 with same Grade Pay of Rs.4200.
2. The introduction of Revised Assured Career
Progression (RACP) Scheme in Finance Department
Resolution No.3560, dated 06.02.2013 with effect
from 01.01.2013 envisage three financial
upgradations at an interval of 10/20/30 years of
the service career with stipulation in the said FD
Resolution. As per the said Finance Department
Resolution, services having defined line of promotion
shall avail the Pay Band/Grade Pay of next
promotional hierarchy. Due to same Grade Pay
existing in many of the cadres having defined line of
promotion the Grade Pay does not change as per the
Scheme dated 06.02.2013 thereby creating
resentment among such cadres. The Service
Association of various cadres have been
representing for removal of such anomaly.
3. After careful consideration of the recommendation of
Anomaly Committee and in exercise of powers
conferred under Rule 19 of ORSP Rules, 2008,
Government have been pleased to incorporate the
following changes in the Grade Pay of posts of
different Departments mentioned at Table-I to
mitigate such anomaly:
i) Enhance the promotional Grade Pay of the
cadres from Rs.4200 to Rs.4600 where the
feeder post Grade Pay is Rs.4200.
ii) With the feeder post grade pay of Rs.4200,
where more than one promotional hierarchy is
at Rs.4200 grade pay, the promotional posts
shall be merged to one cadre with the grade
pay Rs.4600. For example, the Section Officer,
Level-II and Level-I in Heads of Department
cadre shall be merged to one cadre of Section
Officer with grade pay Rs.4600.
iii) The grade pay of the next promotional post
now carrying the grade pay of Rs.4600 shall
be enhanced to Rs.4800. There are services in
which the posts carrying grade pay of Rs.4600
gets filled up partly by direct recruitment and
partly by promotion from a post now carrying
grade pay Rs.4200. If the grade pay of such
feeder posts is enhanced to Rs.4600 the grade
pay of such promotional posts shall be
enhanced to Rs.4800.
Sl. Name of Feeder post 1st Promotional 2nd
No. Departme (Rs.9300 - Post (Rs.9300- Promotional
nt 34800 + GP 34800 + GP Rs. Post Rs.9300-
Rs.4200) 4600)
34800 + GP
Rs.4800)
1 Home ASO SO Desk Officer
(Sectt/ (Sectt/
Governor's Sectt Governor's Sectt
OLA/OHC OLA/OHC
Senior Personal Private
Stenographer Assistant Secretary
Supdt. Level-II Supdt. Level-I --
(Issue) (Issue)
Asst. Jailor Jailor Jail
Superintende
nt
2 P.R. PA/GPEO ABDO/SDPO DPO
(Promotional)
3 W&CD ICDS Supervisor CDPO DSDO
(Promotional)
SEO/SA ADSWO DSWO
(Promotional)
4 S&ME Assistant Head Master Head Master
Teacher (Cl-III) (Cl-II)/DI
(Promotional)
5 Transport Sub-Inspector Inspector (Tr) --
(Tr)
6 R&DM R.I. Revenue Jr.
Supervisor Consolidation
Officer
(Promotional)
7 ST&SC WEO ADWO DWO
Devp. (Promotional)
8 Finance Audit (CCA) Asst. Audit Audit Officer
Officer/ Audit
Audit (LFA) Superintendent
9 Cooperati Inspector of SARCS ARCS
on Coop. Soc. (Promotional)
10 HOD Senior Assistant SO, L-I & L-II Establishment
both Officer
redesignated as
Section Officer
4. This resolution shall take effect from dt.
01.01.2013. The financial benefits shall be
with prospective effect.
Order: Ordered that the Resolution be published
in Extra-ordinary issue of the Odisha
Gazette.
By order of the Governor
Sd/-
(U.N. Behera)
Addl. Chief Secretary
to Government‖
10.9. Thus, the Government of Odisha also admitted that
different departments had different anomaly peculiar to
the posts available in the respective department. Thus,
for no fault of the employee, the legitimate dues could
not be withheld by the Government.
11. In the case at hand, the petitioner having completed 30
years of service as on 13/14.06.2008 calculating from
the date of entry into service in terms of ORSP Rules,
2008, she was eligible and entitled to get the 3rd RACPS
with effect from 01.01.2013.
11.1. Perusal of copy of Service Book transpires that the
petitioner joined in the promotional post of Senior Clerk
on 23.12.2011. It, therefore, depicts that the petitioner
has got promotion from Junior Clerk/Lower Division
Clerk after 30 years of service and by then the grade pay
was to be allowed as per the ORSP Rules, 2008 read
with provisions of the RACPS promulgated thereunder.
So, there could not have been any reduction of grade
pay, to which the petitioner had already been entitled to.
11.2. The above view can find support from the following
observation made in State of Odisha Vrs. Bikash Ranjan
Dash, 2021 SCC OnLine Ori 1839:
―36. In the present case, the converse is true. What
happened on 13th October 2009 was not really a
promotion as is contended by the State. It was
across the board and it was a re-fitment of the post
of ACF as Group-A (Jr. Branch) with the promotion
avenue to the post of DFO remaining intact. ACF
was still the entry level grade. In order to remove the
anomaly between the Forest Ranger being a Group B
post, the post of ACF was re-designated as Group-A
(Jr. Branch). This was en masse across the board.
Therefore, there is merit in the contention of the
Opposite Parties that this type of upgradation due to
re-structuring is purely related to grant of financial
benefit without involving any element of promotion.
All the promotion avenues remained intact, i.e. the
promotional avenue from Forest Ranger to ACF and
ACF to DFO. This was, therefore, in terms of the law
explained in Bharat Sanchar Nigam Limited Vrs. R.
Santhakumari Velusamy, (2011) 9 SCC 510, a mere
upgradation without any promotional benefit.
34. Upon carefully examining the Resolution dated
6th February, 2013, it is seen the above
upgradation effected in 2009 as a result of
restructuring of the cadre cannot be construed
to be an upgradation which would deny the
benefit of the RACPS which in any event was
not in force at the relevant point in time. For
the same reason, the TBA granted earlier in 2005
cannot be considered to be as an upgradation which
would deny the Opposite Parties the benefit of the
RACPS. In other words, merely because the
employee had availed a TBA or ACP prior to
2013, he cannot be denied to the benefit of the
RACPS. Unless a person has already got a
promotion within time period of 10, 20 and 30
years in the manner indicated, he cannot be
denied the RACPS benefit.‖
12. In the case of Susanta Kumar Dash Vrs. State of Odisha,
W.P.(C) No.18142 of 2020, this Court vide Judgment
rendered on 22.09.2023, made the following observation,
while deciding the question whether an employee having
got promotion to the higher rank with higher Grade Pay,
can again be eligible to get RACPS:
―24. 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.) Vrs. 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 Vrs. 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 Vrs. 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 Article 14 of the Constitution
which mandates that unequals cannot be treated as
equals.
29. In State Bank of India Vrs. 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. Vrs. 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 Vrs. 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 in 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 Vrs. 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.‖
12.1. After discussing broad contours of RACPS, this Court in
the said case of Susanta Kumar Dash (supra) came to
hold as follows:
―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.‖
12.2. Taking cue from the above observations, the conspectus
of case laws discussed above manifests that no double
benefit can be availed under the Scheme. In the instant
case, it is noteworthy to reiterate that it is not disputed
that having got promoted to the post of Senior Clerk on
23.12.2011 from the post of Lower Division Clerk/Junior
Clerk, the petitioner joined in the promotional post, but
by then she had already been adjudged entitled to draw
the pay scale attune with 3rd RAPCS under the Odisha
Revised Scales of Pay Rules, 2008, with effect from
01.01.2013, having the date of entry into Government
service, i.e., 14.06.1978, as has been recorded in the
Service Book, which fact remained undisputed by the
opposite parties.
13. On the score of craving for direction to the opposite
parties for extending the benefit of RACPS on completion
of 30 years of service with respect to appropriate Grade
Pay, it has been strenuously urged by the learned
Advocate for the petitioner that as the contents of
Paragraph 16 of Annexure-I of the RACPS under the
ORSP, 2008, makes it unambiguous that if a regular
promotion in due course is refused by the employee
"before becoming entitled to a financial upgradation",
then there shall be no financial upgradation under the
RACPS, as the employee has not been stagnated due to
lack of promotional opportunities. Said paragraph
further clarifies that if, however, financial upgradation
has been allowed due to stagnation and the employee
refuses the subsequent promotion, it shall not be a
ground to withdraw the financial upgradation and he
shall, however, not be eligible to be considered for
further financial upgradation till he agrees to be
considered for promotion again and the next financial
upgradation shall also be deferred to the extent of period
of debarment due to such refusal.
13.1. In this respect, if applied to the instant facts and
circumstances, such eventuality does not arise in the
instant case. It is revealed from record that the
petitioner got the promotion to the post of Senior Clerk
after 33 years of service. As is transpired from admitted
position, the entry of the petitioner into the Government
service was on 14.06.1978 and he completed 10 years of
service on 13.06.1988, 20 years of service on 13.06.1998
and 30 years of service on 13.06.2008. It is fact on
record that he got promotion to the rank of Senior Clerk
from Lower Division Clerk/ Junior Clerk on 23.12.2011,
i.e., after 30 years of service.
13.2. The petitioner has not been offered with promotion on
the date of eligibility for the next upgradation, i.e.,
13.06.2008, but he was considered for promotion to the
post of Senior Clerk in the year 2011, i.e., after around
32-33 years of service, which is much after she was
entitled to the financial upgradation in the year 2008.
13.3. The record does not depict and having not filed any
response by objecting to any of the contents and the
averments of the writ petition and facts found stated in
the writ petition even though the Division Bench in the
writ appeal while remitting the matter granted
opportunity to the opposite parties to do so within period
stipulated, it is deemed that the opposite parties do not
have any objection to the claim(s) made by the petitioner
in the writ petition.
13.4. It is appreciated from Paragraph 16 of Annexure-I of the
RACPS under the ORSP Rules, 2008 that the condition
stipulated therein is that no financial upgradation under
RACPS is available to the Government employee "if a
regular promotion in due course is refused by the
employee before becoming entitled to a financial
upgradation". The record does not demonstrate existence
of such a fact.
13.5. Nevertheless, on 22.07.2025 when the instant matter
was taken up for hearing, and after hearing the counsel
for the petitioner, at the request of the learned
Additional Standing Counsel an opportunity was granted
to him to examine the similitude of factual details as
reflected in State of Odisha Vrs. Shiba Charan Bal,
W.P.(C) No.28074 of 2019, vide Order dated 06.03.2020,
and legal perspective as discussed therein. In the said
case, the observations and entitlement of the employee-
applicant as decided by the learned Odisha
Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No.2328 (C) of 2017 [Shiba Charan Bal Vrs. State of
Odisha disposed of by Order dated 26.07.2018] has been
affirmed.
13.6. On the adjourned date, i.e., 23.07.2025, the learned
Additional Standing Counsel has conceded that the
prayer(s) of the petitioner in the instant writ petition
could not be denied on the anvil of such position as set
at rest in Shiba Charan Bal (supra).
13.7. Since in identical situation bearing similar question of
law discussed and decided in such decision of the
learned Odisha Administrative Tribunal has been
acceded to by a Division Bench of this Court in the writ
petition filed at the behest of the State Government,
there cannot be any deviation from application of the
same to the present facts and circumstances.
13.8. For better comprehension, the Order dated 26.07.2018
passed in O.A. No.2328 (C) of 2017 is reproduced
hereunder:
―Heard Mr. M.K. Khuntia, learned counsel for the
applicant and Mr. H. Κ. Panigrahi, learned standing
counsel.
No counter has been filed but as the present case involves
the question of law, hearing is taken up.
Learned counsel for the applicant submitted that the issue
involves in this case is squarely covered by the in
judgment dated 23.06.2017 in O.A.No.1322 (C) and 1323
(C)/2016. The grievance of the applicant is that he was
granted 3rd RACP vide Annexure-3 dated 08.10.2013 with
grade pay of Rs. 4,200/- with effect from 01.01.2013. The
applicant claiming the grade pay of Rs.4,600/-,
approached the authority but the authority in turn vide
impugned order at Annexure-5 dated 04.10.2016 held
that the applicant's service will be counted from
01.05.1987 under another cadre (i.e. E.C. cadre) and
therefore, on the date of retirement on 31.08.2103, he had
not completed 30 years of service and therefore, he will
not be entitled to 3rd RACP. Accordingly, he has
approached this Tribunal.
The averment of the applicant is that initially he was
appointed as Junior Clerk on 15.05.1976 and posted at
Rengali Multipurpose Project, Rengali and while he was
continuing as such, was transferred to Eastern Circle
Cuttack on 01.05.1987 and therefore, his service is to be
counted from the initial date of appointment i.e.
15.05.1976. He had been granted TBA scale taking into
consideration his initial date of joining, i.e. 15.05.1976.
Law is well settled that the RACP is to be considered
taking into consideration the initial date of appointment
which has confirmed in the order dated 23.06.2017 in
O.A.No.1322 (C) and 1323 (C)/2017. By that time, i.e. on
01.01.2013, the applicant has completed 30 years of
service.
Hence, the O.A. is allowed. The、 applicant is entitled to
3rd RACP benefits with effect from 01.01.2013 and
accordingly, the 3rd RACP, as due and admissible, be
given to him within a period of two months from the date
of receipt of a copy of this order and as he has retired, the
arrears be paid to him within a further period of two
months from the date of receipt of a copy of this order.‖
13.9. Being dissatisfied, the Government of Odisha challenged
the said order before this Court by way of writ petition,
giving rise to W.P.(C) No.28074 of 2019, which came to
be dismissed by a Division Bench with the following
observations vide Order dated 06.03.2020:
―Heard Mr. A. Pattnaik, learned Addl. Government
Advocate for the petitioners and Ms B. Pattnaik, learned
counsel for opposite party.
The State of Odisha and its functionaries have filed this
writ petition challenging the order dated 26.07.2018
passed by the Odisha Administrative Tribunal, Cuttack
Bench, Cuttack in O.A. No.2328 (C) of 2017, by which the
learned tribunal allowed the original application filed by
the applicant-opposite party and held that the applicant is
entitled to 3rd RACP benefits with effect from 01.01.2013
on completion of 30 years of service as junior clerk.
Mr. A. Pattnaik, learned Addl. Government Advocate for
the petitioners contended that as per the Revised Assured
Career Progression Scheme (RACPS) three financial up-
gradations counted from the direct entry grade on
completion of 10, 20 and 30 years of service in a single
cadre in absence of promotion. The opposite party-
applicant having joined as Lower Division Clerk in major
irrigation project and having got two separate cadres, he
is not entitled to such benefits as granted by the Tribunal.
Thereby, the order so passed by the Tribunal cannot
sustain in the eye of law.
Ms. B. Pattnaik, learned counsel for opposite party
contended that the opposite party-applicant joined as
Lower Division Clerk on 15.05.1978 under the major
irrigation project and continued up to 31.08.2011 when he
got promotion to the post of senior clerk. But in the
meantime the opposite party is continuing in one cadre as
Lower Division Clerk for more than 30 years. Therefore,
he is entitled to get 3rd RACP and though the claim of the
applicant was rejected by the authority, the learned
Tribunal allowed the same vide order dated 26.07.2018.
It is contended that whether the applicant continued in a
single cadre or not, that question has not been raised by
State Counsel before the learned Tribunal nor filed any
counter affidavit and, as such, for the first time such
contention raised before this Court cannot sustain.
Considering the contention raised by learned counsel for
the parties and after going through the records, it appears
that as per the decision taken by the authority to grant
RACP, there shall be three financial up-gradations under
the said scheme, counted from the direct entry grade on
completion of 10 20 and 30 years in a single cadre in
absence of promotion. Admittedly, the petitioner joined as
Lower Division Clerk on 15.05.1978 and he has already
completed 30 years of service in the said post by
15.05.2008 and due to stagnation of promotional
avenues, the benefit of RACP has to be extended to the
petitioner on completion of 10, 20 and 30 years of service.
Subsequently, he got promotion to the post of Senior Clerk
on 31.08.2011. Thereby, if the petitioner already
completed 30 years of service in one post, i.e., Lower
Division Clerk, may be he has discharged his duty in
major irrigation project or minor irrigation project, it cannot
be said that he has got two different cadres. As such,
nothing has been indicated whether the post of Lower
Division Clerk in major irrigation project and minor
irrigation project are different posts and different cadres.
In absence of any materials before this Court, to that
effect, this Court is of the considered view since the
applicant-opposite party has already completed 30 years
of service, he is entitled to get the benefit of RACP, which
has been granted by the Tribunal. Furthermore, in
absence of contention before the Tribunal with regard to
the post held by the applicant-opposite party that the
same is not a single cadre, the same cannot be raised
before this Court at this stage.
In such view of the matter, this Court is not inclined to
entertain this writ petition. Accordingly, the same is
dismissed.‖
13.10. The piquant situation which arose on account of
"single cadre" or otherwise, though commented upon by
this Court in the above observation, such ambiguity has
been removed by way of implementation of the Finance
Department Resolution dated 13.02.2025, with
retrospective effect from 01.01.2013.
13.11. In the present case, it is patent on record that the
promotion to the rank of "Senior Clerk" was not
accorded before the year 2008, when the petitioner
completed 30 years of service as on 13/14.06.2008. The
petitioner, therefore, deserves to be extended similar
benefit as is given to Shiba Charan Bal (supra) by the
competent authority as he is entitled to "financial
upgradations" as per the RACPS under the ORSP Rules,
2008.
CONCLUSION & DECISION:
14. Given the position of law propounded by the Hon'ble
Supreme Court of India and clarified in the decisions
rendered by this Court referred to supra, more
particularly the benefit as claimed in the prayer(s) of the
instant writ petition being akin to the case of Shiba
Charan Bal (supra), in the light of the discussions made
above and in view of reasons assigned, taking into
consideration the documents forming part of the
pleadings, this Court finds that the case of the petitioner
has not been considered in right perspective by the
authorities/opposite parties. Therefore, this Court has
no other option than to accede to the prayers of the
petitioner. Accordingly this Court does so.
15. It is, thus, necessary to issue following directions:
i. The petitioner being found entitled to benefit in
terms of the Revised Assured Career Progression
Scheme promulgated under the Odisha Revised
Scales of Pay Rules, 2008, the opposite parties are
directed to consider the representation at
Annexure-6 and grant the benefit as prayed for by
the petitioner in present writ petition taking into
account that identical benefits have been extended
to similarly situated employee, viz., Shiba Charan
Bal (supra).
ii. The aforesaid exercise is directed to be completed
within a period of two months from today.
16. In fine, the Writ Petition stands disposed of along with
all pending interlocutory applications, if any, in terms of
observations and directions as above, but in the
circumstances without any order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 01-Aug-2025 17:08:00
High Court of Orissa, Cuttack
The 01st August, 2025//Aswini/Bichi/Laxmikant
