Orissa High Court
Saumendra Kumar Mishra vs State Of Odisha And Others … Opposite … on 2 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3758 of 2024
In the matter of the application under Articles 226 of the
Constitution of India.
Saumendra Kumar Mishra ... Petitioner
- Versus -
State of Odisha and others ... Opposite Parties
Advocate(s) appeared in this case:-
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For Petitioner ... M/s. Saswati Mohapatra,
N.R. Samal.
For Opposite Parties ... Mr. Samresh Jena,
Additional Standing Counsel.
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PRESENT:
THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA
Date of hearing – 13.03.2025 :: Date of judgment – 02.04.2025
Aditya Kumar Mohapatra, J. By filing the preset writ petition, the
Petitioner has prayed for a direction to the State-Opposite Parties
to release the pension and pensionary benefits as is due and
admissible to him within the stipulated period of time.
Page 1 of 21.
2. In the present writ petition, while the matter was being
heard finally after completion of the pleadings from both sides,
learned counsel for the Petitioner produced a copy of letter
No.549 dated 11.03.2025 issued under the signature of the
Pension Sanctioning Authority, i.e. D.G.P.-cum-Director
Intelligence, Odisha, Bhubaneswar. On perusal of the said letter,
it appears that instruction has been given to the Sr. Accountants
Officer of the office of the Accountant General (A&E), Odisha,
Bhubaneswar with regard to the pensionary benefits of the
present Petitioner. Further, along with the said letter, the revised
pension papers of the present Petitioner along with original
Service Book were re-submitted for drawal of Pension/CVP and
Gratuity except Government dues to the tune of Rs.4,66,704/-
(towards over payment of excess pay and allowance including
leave salary). Further request has been made to the office of the
Accountant General (A&E), Odisha, Bhubaneswar, to release the
pensionary benefits at the earliest after deducting the dues
mentioned hereinabove.
3. The factual background of the case leading to filing the
present writ petition lie in a narrow compass. The present
Page 2 of 21.
Petitioner was appointed as Senior Clerk in the office of the
Special Branch, Odisha Police, on 25.11.1987. While working as
such, the Petitioner was promoted to the post of Senior Assistant
from the post of Senior Clerk. The promotion order under
Annexure-1 to the writ petition reveals that the Petitioner was
given promotion to the rank of Senior Assistant vide Office
Order No.189 dated 15.11.2000 by the Director-cum-Addl. D.G.
of Police, Intelligence, Orissa, Cuttack, in the scale of pay of
Rs.4750-125-7500/- with Special Pay/D.A. and other allowances
as is admissible to the said post from time to time and the
Petitioner was posted against the existing vacancy in the
sanctioned post of Senior Assistant. The said promotion order
further reveals that the promotion of the Petitioner was subject to
the final result of O.A. Case No.2297/1996 (Ghanashyam Nayak
-Vrs.- State of Orissa and others).
4. While the Petitioner was working as a Senior Assistant on
being promoted vide order under Annexure-1, he was extended
with 2nd RACP benefit vide order dated 12.08.2014 passed by the
Director-cum-Addl. D.G. of Police, Intelligence, Odisha,
Bhubaneswar under Annexure-2, with effect from 01.01.2013.
Page 3 of 21.
However, such 2nd RACP benefit was cancelled vide order dated
19.08.2021 passed by the Director, Intelligence, Odisha,
Bhubaneswar, under Annexure-6, on the ground that the same
was erroneously extended to the Petitioner as the Petitioner
appointed against/holding ex-cadre post and, as such, he is not
entitled to the RACP benefits in terms of the Notification dated
06.02.2013 of the Finance Department of the Government of
Odisha.
5. While this was the position, the Petitioner approached the
Odisha Administrative Tribunal by filing O.A. No.4217 of 2015
along with similarly situated other persons thereby challenging
the order dated 05.11.2015 passed by the Opposite Party No.1. It
is apt to mention here that the order dated 05.11.2015 was passed
by the Home Department, Government of Odisha, laying down
the principle that it is only the direct recruit staffs/officers, who
are eligible to get the financial benefits under the RACP Scheme.
It further reveals that the Special Branch under Police
Organization enjoys the status of HOD and the Ministerial posts
which have been sanctioned by the Home Department vide their
Page 4 of 21.
letter dated 28.08.1964, followed by letters dated 22.01.1986 and
18.07.1987.
6. The above said letter further reveals that since the
promotion of such ministerial staff in the Special Branch has
been done in complete disregard to the sanctioned posts in the
establishment and without the prior approval of the Department,
such promotion is legally unsustainable and that it is a part of an
erroneous practice followed by the Special Branch. Accordingly,
certain clarifications were issued by virtue of the aforesaid orders
by the Home Department. The aforesaid letter in paragraph-2
categorically provides that the Senior Clerks recruited directly in
the Special Branch shall be treated as ex-cadre employee.
Therefore, their services shall be governed by the instruction
dated 01.12.2011 and that such persons shall be allowed the
RACP benefit as per Para-10 of the Resolution dated 06.02.2013.
7. After abolition of the Odisha Administrative Tribunal, the
above noted O.A. was transferred to this Court and was
renumbered as WPC(OAC) No.4217 of 2015. The writ petition
filed by the Petitioner was taken up by a coordinate Bench of this
Page 5 of 21.
Court along with the writ petitions of other similarly situated
persons. Finally, the learned coordinate Bench vide order dated
03.11.2022 disposed of the writ petitions by virtue of a common
order passed in WPC(OAC) No.1554 of 2016 (Jagannath Sethi
& Others v. State of Odisha& Others). While allowing the said
writ petitions, learned coordinate Bench has observed that after
receiving order dated 05.11.2015 from the Government, the
Director-cum-Additional D.G. of Police, Intelligence sought for
instruction/clarification from the Government in the context of
whether ministerial staff working in the Special Branch are
entitled to get benefit of RACP under the Resolution dated
06.02.2013.
8. It has already been observed that no cadre rule was framed
in respect of the ministerial staff working in the Special Brach.
Thus, in the absence of such cadre rule, learned coordinate Bench
has held that the action of Opposite Party No.1 in holding that the
post of Senior Clerk as an ex-cadre post was not just and proper.
However, while disposing of the writ petitions, the Opposite
Party No.1 was directed to take a decision within a period of one
month keeping in view the admitted position regarding non-
Page 6 of 21.
framing of any cadre rule for ministerial staff working in the
Special Branch and further keeping in view the fact that no cadre
rule exists for such employees. Finally, it was observed that on
such consideration the benefit of MACP/RACP be extended in
favour of the Petitioners.
9. Ms. Saswati Mohapatra, learned counsel for the Petitioner,
at this juncture, contended that by virtue of the Office Order
No.231 dated 29.12.2020 under Annexure-5 to the writ petition,
the Opposite Parties have considered the case of the Petitioner by
treating him as a Senior Assistant (directly recruited as a Senior
Clerk) and he has been extended with the RACP/MACP benefits
as per Clause-10 of the Finance Department Resolution dated
06.02.2013. Further, such decision taken by the Opposite Parties
was made subject to the final outcome of the decision in O.A.
No.4217 of 2015. Accordingly, an order was passed by
extending the 1st RACP benefit w.e.f. 01.01.2013 on completion
of 10 years of service on 25.11.1997, 2nd RACP benefit w.e.f.
01.01.2013 on completion of 20 years of service on 25.11.2007
and finally, 3rd MACP benefit was allowed w.e.f. 25.11.2017 i.e.
on completion of 30 years of service.
Page 7 of 21.
10. Learned counsel for the Petitioner further contended that
pursuant to order dated 29.12.2020 under Annexure-5 to the writ
petition, the Petitioner was extended with the benefits pursuant to
the Finance Department Resolution dated 06.02.2013, though the
same was subject to the final outcome of O.A. No.4217 of 2015.
In so far as O.A. No.4217 of 2015 is concerned, the same has
been discussed in the preceding paragraph and by virtue of order
passed by the learned coordinate Bench, the writ petition
preferred by the Petitioner was allowed subject to certain
observations. In such view of the matter, learned counsel for the
Petitioner submitted that the order dated 29.12.2020, extending
the benefits of RACP/MACP in favour of the Petitioner, had
attained finality and such decision of the Government under
Annexure-5 has not been discussed by the coordinate Bench of
this Court while passing orders in WPC(OAC) No.4217 of 2015,
which was disposed of vide a common order dated 03.11.2022.
11. Further, referring to the order dated 12.08.2014 under
Annexure-2 to the writ petition, learned counsel for the Petitioner
contended that the screening committee which was constituted to
consider the case of the ministerial staff for grant of RACP
Page 8 of 21.
benefits had recommended the case of the Petitioner for grant of
2nd RACP benefits w.e.f. 01.01.2013 on completion of 20 years
of service. Thus, the decision of the Opposite Parties in
extending the RACP benefits in terms of the Finance Department
Resolution dated 06.02.2013 has eventually been upheld by the
coordinate Bench of this Court in its order dated 03.11.2022.
12. While this was the position, on 19.08.2021, an order was
passed by the Director, Intelligence, Odisha, Bhubaneswar, under
Annexure-6 to the writ petition thereby cancelling the 2nd RACP
benefits extended in favour of the present Petitioner. Being
aggrieved by such order, the Petitioner approached this Court by
filing W.P.(C) No.26170 of 2021. This Court disposed of the
above noted writ petition vide order dated 17.04.2023 by taking
note of the order passed by the coordinate Bench of this Court on
03.11.2022 in Jagannath Sethi‘s case (supra) and the batch of
other similar matters and while disposing of the writ application,
this Court had categorically directed the Opposite Party No.1 to
carry out the order passed by the coordinate Bench of this Court
in Jagannath Sethi‘s case (supra) and batch of other similar
matters, which were disposed of vide a common order dated
Page 9 of 21.
03.11.2022, including the writ petition of the present Petitioner,
within a period of eight weeks and it was further directed that the
Opposite Party No.1 shall also consider the grant of
RACP/MACP in favour of the Petitioner as has been directed by
the coordinate Bench of this Court vide order dated 03.11.2022.
13. Since the order dated 17.04.2023 passed in W.P.(C)
No.26170 of 2021 was not implemented by the Opposite Parties,
the Petitioner was compelled to approach this Court by filing
CONTC No.10162 of 2023. This Court disposed of the said
contempt application vide order dated 12.01.2024 by granting
further eight weeks’ time to the Opposite Parties to implement
the order dated 17.04.2023.
14. While the matter stood thus, the Petitioner has retired from
service on attaining the age of superannuation w.e.f. 31.10.2023
while he was working as a Senior Assistant in the office of
Superintendent of Police, Security Wing, Bhubaneswar. Learned
counsel for the Petitioner, at this juncture, contended that after
his retirement from service, the Petitioner was getting provisional
pension by taking into consideration the scale of pay of the
Page 10 of 21.
Petitioner attached to the post of Senior Assistant. In the
aforesaid context, learned counsel for the Petitioner referred to
the order under Annexure-10 to the writ petition.
15. Mr. Samresh Jena, learned Additional Standing Counsel
appearing for the State-Opposite Parties, on the other hand,
referred to the counter affidavit filed by the Opposite Party No.3
to the writ petition. Further, referring to the counter affidavit,
learned Additional Standing Counsel appearing for the State-
Opposite Parties contended that there are no approved cadre rules
to regulate the service condition of ministerial staff of the Special
Branch. As per existing practice, the Petitioner and similarly
situated other persons have been appointed directly as Senior
Clerk and, accordingly, the Petitioner was appointed as Senior
Clerk in the year 1987. Further, in counter affidavit, the
Opposite Parties have specifically admitted the fact with regard
to the promotion given to the Petitioner to the rank of Senior
Assistant, although they have stated that the Petitioner should not
have been given promotion as the post of Senior Clerk is a
District Cadre post. However, they have not disputed the fact
Page 11 of 21.
that the Petitioner was given promotion to the rank of Senior
Assistant vide Office Order dated 15.11.2000 under Anexure-1.
16. Learned Additional Standing Counsel appearing for the
State-Opposite Parties further contended that the
recommendation for grant of RACP benefits pursuant to the
Finance Department Resolution dated 06.02.2013 is an erroneous
one. The Screening Committee under the Chairmanship of S.P.
Security Wing had erroneously recommended for 2nd RACP
benefits in favour of the Petitioner w.e.f. 01.01.2013 vide their
office order dated 12.08.2014. Moreover, to overcome the
aforesaid problem, although the Government was moved seeking
clarification in the matter, however, no such clarification was
given to the Opposite Parties by the Government. Referring to
the Home Department, Government of Odisha letter dated
05.11.2015, learned Additional Standing Counsel submitted
before this Court that the Senior Clerks so recruited directly in
the Special Branch shall be treated as ex-cadre employees and
their services shall be governed by Home Department
communication dated 01.12.2011.
Page 12 of 21.
17. Further, letter dated 01.12.2011 stipulates that such
statutory cadre rule shall not be applicable to such employees and
that they will continue against the ex-cadre posts enjoying the
status of Government servant. He further contended that such
employees who are continuing in ex-cadre posts have been
extended with the benefit of RACP under Clause-10 of Finance
Department Resolution dated 06.02.2013. Moreover, the learned
Additional Standing Counsel also contended that in terms of the
letter dated 05.11.2015, the Screening Committee verified the
cases of the Petitioner in its meeting held on 17.12.2020.
18. Accordingly, the Petitioner was extended with the financial
benefits under the Finance Department Resolution dated
06.02.2013 by allowing the Petitioner to get the benefits of 1st,
2nd RACP and 3rd MACP on completion of 10, 20 and 30 years of
service in one rank under Para-10 of the Finance Department
Resolution dated 06.02.2013. Learned Additional Standing
Counsel appearing for the State-Opposite Parties further
contended that while reviewing the decision taken by the
Screening Committee on 17.12.2020, which was communicated
to the Petitioner on 29.12.2020 under Annexure-5 to the writ
Page 13 of 21.
petition, the decision of the Screening Committee dated
17.02.2020 was recalled vide order dated 19.08.2021 under
Annexure-6 to the writ petition. However, no specific ground for
recall has been mentioned in the order dated 19.08.2021 under
Annexure-6 to the writ petition.
19. Additionally, with regard to framing of cadre rule, learned
Additional Standing Counsel referring to the counter affidavit,
submitted that the separate draft Cadre Rule for “The Intelligence
Directorate of Odisha Police Ministerial Service (Method of
Recruitment and Conditions of Service)” has been sent to the
Police Headquarters vide letter dated 08.12.2023 for approval by
the Government. In paragraph-12 of the counter affidavit, the
date of retirement of the Petitioner has also been referred to and it
has been stated that although his pension papers were forwarded
to the competent authority, however, it was detected that the
same is not in consonance with the order dated 29.12.2020. Such
fact has also been reiterated in paragraph-13 of the counter
affidavit. In view of the aforesaid submission, learned
Additional Standing Counsel submitted that the Opposite Parties
have not committed any illegality in withholding his financial
Page 14 of 21.
benefits, which had been erroneously released in favour of the
Petitioner. Accordingly, it was contended that the writ petition is
devoid of merit and, as such, the same should be dismissed.
20. Heard Ms. Saswati Mohapatra, learned counsel appearing
for the Petitioner as well as Mr. Samresh Jena, learned Additional
Standing Counsel appearing for the State-Opposite Parties.
Perused the pleadings of the respective parties as well as
examined the documents annexed to the respective pleadings.
21. On a careful analysis of the submissions made by the
learned counsels appearing for both the sides, further on a careful
scrutiny of the factual background of the present case along with
the documents placed before this Court for consideration by both
the sides, this Court observes that the only issue that is required
to be considered in the present case is with regard to the grant of
benefits to the Petitioner under the Finance Department
Resolution dated 06.02.2013 by taking into consideration the pay
scale of the Petitioner as a Senior Assistant. On a careful analysis
of the materials on record, it appears that although a decision was
taken by the Opposite Parties to extend the financial benefits
Page 15 of 21.
under the Finance Department Resolution dated 06.02.2013,
however, the same has been subsequently withdrawn vide order
dated 19.08.2021 under Annexure-6 to the writ petition.
22. It is not disputed by the parties that the Petitioner had
initially joined as a Senior Clerk. Thereafter he was promoted to
the post of Senior Assistant by virtue of order dated 15.11.2000
passed by the Director-cum-Addl. D.G. of Police, Intelligence,
Orissa, Cuttack in the scale of pay of Rs.4750-125-7500/- along
with Special Pay/D.A. and other allowances attached to the said
post. It is also not disputed by the parties that there was a
vacancy in the post of the Senior Assistant. Parties to the present
writ application also do not dispute the fact that there is no cadre
rule framed to govern the service conditions of the officers/staffs
engaged in Odisha Special Branch. Keeping in view the
aforesaid admitted factual position, this Court is required to
adjudicate the conduct of the Opposite Parties in withdrawing the
financial benefits which was extended in favour of the Petitioner
on being recommended by the Screening Committee vide its
minutes dated 17.12.2020 which was subsequently
Page 16 of 21.
communicated vide Office Order dated 29.12.2020 under
Annexure-5.
23. On a careful scrutiny of order dated 29.12.2020 under
Annexure-5, it is observed that the Petitioner has been extended
with the 1st, 2nd RACP and 3rd MACP benefits by considering the
Petitioner as a Senior Assistant (Directly Recruited as Senior
Clerk). While the Petitioner was drawing such benefits, the
impugned order under Annexure-6 was passed by abruptly
withdrawing the order dated 12.08.2014, under which, the
Petitioner was extended with the benefit of the 2nd RACP on
completion of 20 years of qualifying service. It has been further
specifically mentioned that the Petitioner has been allowed the
financial upgradation pursuant to Office Order No.231 dated
29.12.2020. On a close scrutiny of order dated 19.08.2021 under
Annexure-6 to the writ petition, this Court found that the order
dated 12.08.2014 under Annexure-2 extending 2nd RACP
benefits has only been cancelled while granting the benefits vide
order dated 29.12.2020 under Annexure-5 to the writ petition.
Page 17 of 21.
24. As has been discussed hereinabove, by virtue of the order
dated 29.12.2020 under Annexure-5 to the writ petition, the
Petitioner has been extended with the benefits as per the pay
scale attached to the post of Senior Assistant and the date of such
benefits has already been mentioned in the Office Order dated
29.12.2020 at Serial No.13. Moreover, none of the parties to the
writ petition have disputed the order dated 29.12.2020. Further,
this Court observes that the Petitioner has already retired from
service in the meantime. Therefore, the question with regard to
the framing of cadre rule is merely academic in nature. It is also
not disputed by the Opposite Parties that the Petitioner was
holding the post of Senior Assistant from 15.11.2000 ( as per the
document under Annexure-1 to the writ petition) till his
retirement. Therefore, this Court finds no infirmity in the order
dated 29.12.2020 under Annexure-5 to the writ petition.
25. It is also observed by this Court that in the previous writ
petition, a coordinate Bench of this Court as well as this Bench
has categorically held that the Petitioner was holding the post of
Senior Assistant and necessary directions were issued to the
Opposite Parties to redress the grievance of the Petitioner.
Page 18 of 21.
26. The letter dated 11.03.2025, which was produced before
this Court today, in course of hearing, by the learned Additional
Standing Counsel, reveals that the Pension Sanctioning Authority
has already recommended the case of the Petitioner for grant of
pensionary benefits taking into consideration the fact that the
Petitioner was working as Ex-Senior Assistant. Therefore, there
exists no doubt with regard to the Petitioner holding the post of
Senior Assistant. Accordingly, this Court has no hesitation in
coming to a conclusion that the Petitioner was, in fact, promoted
and was holding the post of Senior Assistant and, as such, he is
entitled to the pay scale and other allowances attached to the said
post. Moreover, the order dated 29.12.2020 under Annexure-5 to
the writ petition is very clear with regard to payment of benefits
under the financial upgradation scheme pursuant to the Finance
Department Resolution dated 06.02.2013 and the same is not
disputed by either side.
27. In such view of the matter, the present writ petition stands
allowed with a direction to the Opposite Parties to grant the
pensionary as well as other financial benefits including
CVP/Gratuity by taking into consideration the fact that the
Page 19 of 21.
Petitioner was working as a Senior Assistant and was getting the
scale of pay attached to the said post. Accordingly, the pay scale
of the Petitioner shall be re-fixed by taking into consideration the
benefits as has been allowed in his favour vide Office Order
dated 29.12.2020 under Annexure-5 to the writ petition.
28. While disposing of the writ petition with the aforesaid
direction, this Court further directs that the Pension Sanctioning
Authority shall recalculate the dues of the Petitioner in terms of
the observations made hereinabove. Accordingly, the
recommendation sent to the office of the Accountant General
(A&E), Odisha, Bhubaneswar, for recovery of a sum of
Rs.4,66,704/- vide letter dated 11.03.2025 is hereby quashed.
The Petitioner is directed to approach the Opposite Parties along
with a copy of this judgment. In such eventuality, the opposite
Parties shall recalculate the benefits as has been directed
hereinabove and shall make every endeavour to extend the
service as well as all financial benefits as is due and admissible to
the Petitioner within a period of three months.
Page 20 of 21.
29. Accordingly, the writ petition stands disposed of.
However, there shall be no order as to costs.
(Aditya Kumar Mohapatra)
Judge
Orissa High Court, Cuttack
The 2nd April, 2025/Debasis Aech, Secretary
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 02-Apr-2025 19:45:21
Page 21 of 21.
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