Orissa High Court
Sunakar Sharma And Others vs State Of Odisha And Others ..... ... on 1 May, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.14917 of 2024
Sunakar Sharma and others ..... Petitioners
Represented By Adv. -
Sameer Kumar Das
-versus-
State Of Odisha and others ..... Opposite Parties
Represented By Adv. -Mr
S.K.Bramha, A.S.C.
Mr.S.K.Patra, Standing
Counsel for O.P No.4
Mr.sudhir Kumar
Patra(sc)
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
01.05.2025
Order No.
09. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. The present batch of writ applications have been filed by
different petitioners through their respective counsels. Being
aggrieved by the decision of the Opposite Party No.1 dated
04.05.2024, thereby rejecting the prayer of the petitioners, the
present writ application has been filed with a prayer to quash the
order dated 04.05.2024 passed by the Opposite Party No.1 under
Annexure-5 to the writ application and for a further direction to
the Opposite Parties to restore the 3rd RACP benefits as has been
sanctioned in favour of the Petitioners in the grade pay of
Rs.4,200/- and accordingly re-fix their pay & pension and grant
the differential arrears thereof including the revised pension and
retiral dues within a stipulated period of time.
3. Since all the writ petitions involve an identical issue as
well as a common factual background and the impugned order in
such writ petitions passed by the Opposite Party No.1 is
identical, although passed on the different dates, the same are
being taken up together for hearing. After hearing learned
counsels appearing for the both sides the same have been
disposed of by the following common order.
4. For the sake of convenience the factual matrix of W.P.(C)
No.14917 of 2024 is taken up for analysis of the factual
background of the batch of writ applications.
W.P.(C) No.14971 of 2024 has been filed by the
petitioners stating therein that the petitioners were initially
appointed as "Fireman" in between the 16.02.1981 to
15.07.1985. While they were discharging their duties of
Fireman, the State Government introduced the Revised Assured
Career progression (RACP) scheme thereby granting 1st, 2nd and
3rd RACP i.e. financial up gradation to the government
employees on completion of 10, 20 and 30 years of Govt. service
in the event such government employees are not given any
promotion during their career as has been mentioned
hereinabove. On 20.01.2014, Finance Department issued another
clarification to the notification dated 06.02.2013 under
Annexure-2 to the writ application. It appears that by virtue of
the circular dated 20.01.2014 Govt. of Odisha, Finance
Department issued a clarification with regard to grant of RACP
benefits to the Government employees. Clause 4 of the aforesaid
clarification under Annexure-2 to the writ application reveals
that the question posed on the Finance Department was, "what
would be the grade pay of employees under the RACP scheme
where there are less than 3 promotional stages in the cadre?". In
reply to the said query, the Finance Department has issued the
clarification to the effect that where there are less than 3
promotional stages in the cadre, the employee of that cadre shall
get the Pay Band & Grade Pay of the promotional post up to the
stages available in that cadre and thereafter, the next higher
grade pay along with Pay Band hierarchically available in First
Schedule of ORSP Rules, 2008 with introduction of new grade
pay, if any, in between shall be given. Accordingly, the
petitioners were allowed 1st, 2nd and 3rd RACP benefits with
consequential Finance benefits thereof by the Opposite Party
Nos.2 and 3.
5. On perusal of the averments made in the writ application it
appears that vide order dated 26.05.2018, under Annexure-3, the
petitioners were extended with the RACP benefits though a
clarification was sought for by the government with regard to
grant of such benefits to some categories of employees. On
29.10.2018, the State Government issued the clarification with
the effect that in the event there is a promotion available in the
hierarchy of the employees, they will get RACP benefits and in
absence in any Rule they will not be given the benefits. In view
of the aforesaid clarification dated 29.10.2018 steps were taken
to recover the 3rd RACP benefits which have already been
extended in favour of the petitioners. Being aggrieved by such
recovery of the 3rd RACP benefits already extended in favour of
the petitioners, the petitioners approached the learned OAT by
filing O.A. No.2806 of 2018. After abolition of the tribunal the
aforesaid O.A. was transferred to this Court and renumbered as
WPC(OAC) No.2806 of 2018. Finally, a Coordinate Bench, vide
order dated 13.09.2022 passed in the abovenoted writ
application, allowed the writ application and the order dated
29.10.2018 was quashed with a further direction to the Opposite
Parties to consider the case of the petitioner in terms of the ratio
decided in the case of State of Punjab and others vs. Rafiq
Masih (White Washer), reported in AIR 2015 SC 696 and to
take decision within a period of three months from the date of
communication of a copy of that order.
6. After disposal of the previous writ application the
petitioner has again approached the Opposite Party No.1 along
with a copy of the order passed by this Court in the earlier writ
application dated 13.09.2022. The Opposite Party No.1 vide
order dated 04.05.2024, under Annexure-5 to the writ
application, considered the grievance of the petitioners and the
same was disposed of by passing a speaking and reasoned order.
On perusal of the order dated 04.05.2024 it appears that the
prayer of the petitioners for grant of 3rd RACP benefits was
rejected by referring to Para-10 of notification dated 06.02.2013
under Annexure-1 to the writ application. Further, the Opposite
Party No.1, in his order dated 04.05.2024, has stated that the
judgment of the case of Rafiq Masih's case (supra) not
applicable to the case of the petitioner as the petitioners were
allowed Grade Pay of Group-D employees and that the low laid
down in Rafiq Masih's case (supra) is applicable to low paid
employees of the government. Being aggrieved by order dated
04.05.2024 under Anneuxre-5, the Petitioners have again
approached this Court by filing the present writ application. On
perusal of the pleadings in other connected writ applications it
appears that the issue involved in those cases is identical to the
one involved in the present case and in each of the connected
writ applications the prayer of the petitioners for grant 3rd RACP
benefits has been rejected by referring to clause-10 resolution
dated 06.02.2013 under Annexure-1 to the present writ
application.
7. Learned counsel for the State on the other hand contended
that the Opposite Party No.1 has not committed any illegality in
rejecting the claim of the petitioner. Referring to the counter
affidavit file by the Opposite Party No.1 to 3, learned counsel for
the State contended that on a careful scrutiny of the resolution of
the Finance Department dated 06.02.2013, the Opposite Party
No.1 has come to a conclusion that the petitioners are not
covered by the aforesaid resolution. Learned counsel for the
State further specifically referred to the provisions contained
under clause-10 of the resolution dated 06.02.2013 under
Annexure-1 to the writ application. He further contended that
since the direction of this Court in the earlier writ application has
been already been complied with in its letter and spirit and the
representation of the petitioner has been disposed of by passing a
speaking and reasoned order, and considering that fact that the
Opposite Parties have taken note of all the aspects of the matter
before passing the impugned order under Annexure-5, learned
counsel for the State contended that the Opposite Parties have
not committed any illegality in rejecting the prayer of the
Petitioners in the present batch of the writ applications. In such
view of the matter, learned counsel for the State further
submitted that the batch of present writ applications is devoid of
merit and accordingly the same should be dismissed.
8. Mr. S.K.Patra, learned counsel appearing for the Principal
Accountant General (A& E) on the other contended that with
regard to the entitlement of the petitioner to the 3rd RACP
benefits, it is the concerned Administrative Department which is
required to take a decision. Since no recommendation was given
to the Office of the Principal Accountant General and, in the
absence of the revised pension papers, the Office of the Principal
Accountant General i.e. Opposite Party No.4 is not responsible
for payment of such 3rd RACP benefits to the petitioners or there
in any way concerned with the recovery of such amount from the
petitioners pursuant to the decision by the Administrative
Department. In the aforesaid background learned counsel
appearing for the Opposite Party No.4 contended that the
Opposite Party No.4 has no role in the present batch of writ
applications as no prayer has been made against the Opposite
Party No.4. Hence, it was contended that the writ applications
against the Opposite Party No.4 are not maintainable.
9. In course of hearing of the matter learned counsel for the
petitioners referred to the latest resolution of the Finance
Department clarifying the Finance Department resolution dated
06.02.2013 under Annexure-1. The later resolution was issued
on 13.02.2025, which clarifies the position further. A copy of
latest resolution dated 13.02.2025 has been filed as under
Annexure-6 to the I.A. filed by the petitioner and the same has
been numbered as I.A. No.3342 of 2025. Mr. Das, learned
counsel for the petitioner further specifically referred to the
clause 4 of aforesaid resolution dated 13.02.2025 and contended
that Para-10 of the resolution dated 06.02.2013 under Annexure-
1, which was a hurdle in extending the benefit in favour of the
petitioners, has been substituted in the meantime. On a careful
scrutiny of the resolution dated 13.02.2025 this Court observes
that in Para-4 the State Government has suggested the following
amendment/substitution.
"(a) The word (in a single cadre) mention in first
sentence of Para-1 of Annexure-1 of Finance
Department Resolution No.3560/F, dated 06.02.2013
are hereby deleted.
(b) Para-10 of Annexure-1 of the said Resolution
dated 06.02.2013 substituted by the following
paragraph.
"10. Benefit of pay fixation available at the tie 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 not 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."
10. Learned counsel for the petitioner at this juncture
contended that the cases of the present petitioners in the
connected batch of writ applications shall be covered by clause
(i) & clause (ii) of the substituted clause-10 of the resolution
dated 13.02.2025. He further submitted that in view of the
changes made to the clause-10 of the resolution dated
06.02.2013, under Annexure-1, the Petitioners are now eligible
to get the 3rd RACP benefit and the conduct of the Opposite
Parties in extending the RACP benefits initially in the Pay Grade
of Rs.4,200/- shall be protected by the substituted clause-10 of
the Finance Department resolution dated 13.02.2025. In such
view of the matter, learned counsel for the petitioner submitted
that the impugned rejection order dated 04.05.2024 under
Annexure-5, which was passed prior to the Finance Department
resolution dated 13.02.2025, is unsustainable in law and,
accordingly, the same is required to quash by this Court with a
further direction to the opposite parties to extend the 3rd RACP
benefit in favour of the petitioner and accordingly the pay as
well as pensionary benefit of the petitioner be revised by
applying the resolution dated 13.02.2025.
11. Having regard the submissions made by the learned
counsels appearing for the petitioners in the batch of the writ
applications as well as learned counsel for the State and Mr.
S.K.Patra, learned counsel appearing for the Opposite Party
No.4 i.e. Principal Accountant General, on a further analysis of
the factual background of the present case and keeping in view
the resolution of the Finance Department dated 06.02.2013
under Annexure-1 and the resolution dated 13.02.2025 under
Annexure-6 to the writ application, this Court is of the
considered view that the impugned rejection order dated
04.05.2024 under Annexure-5, whereby the claim of the
Petitioners was rejected, was passed prior to the substitution of
clause-10 of the resolution dated 06.02.2013 under Annexure-1.
Taking into consideration the substituted provision of clause 10
as provided in the resolution dated 13.02.2025, under Annexure-
6, this Court is of the view that the impugned rejection order
dated 04.05.2024 under Annexure-5 is unsustainable in law.
Accordingly, this Court has no hesitation in quashing the
impugned rejection order dated 04.05.2024 under Annexure-5.
Accordingly, the same is hereby quashed. In view of the
aforesaid analysis of the legal position, further keeping in view
the resolution dated 13.02.2025 under Annexure-6 to the writ
application and the consequential substitution of clause 10 of the
resolution dated 06.02.2013 by virtue of the subsequent
resolution dated 13.02.2025, this Court is of the view that the
cases of the petitioners requires consideration. As such, while
disposing of the writ application, the Opposite Party No.1 is
directed to reconsider the case of the Petitioners in terms of the
substituted clause-10 of the Finance Department resolution dated
13.02.2025. In the event the Opposite Party No.1 comes to a
conclusion that the Petitioners are covered under the substituted
clause-10 of the resolution dated 13.02.2025, then necessary
steps be taken to protect the Petitioners by giving concurrence to
the extension of the 3rd RACP benefit, which has already been
extended in favour of the petitioner w.e.f. 01.01.2013, and
accordingly their pay and pension be re-fixed within a period of
two months from the date of communication of a copy of today's
order. Further, it is directed that in the event any of the
Petitioners are entitled to such benefits, the same shall be
calculated and disbursed in favour of the Petitioners within a
period of six weeks from the date of taking such a decision.
12. With the aforesaid observations and directions the writ
petition stand disposed of.
( A.K. Mohapatra )
Judge
Rubi
