Orissa High Court
Pradeep Kumar Mishra vs State Of Odisha on 11 August, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.11155 of 2022
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Pradeep Kumar Mishra
Aged about 66 years
Son of Late Baishnab Charan Mishra
At: Bhagirathi Bihar,
B/45, Gudianali, P.O.: Dhenkanal
District: Dhenkanal … Petitioner
-VERSUS-
1. State of Odisha
Represented through
The Principal Secretary to
Agriculture and Farmer Empowerment Department
Odisha Secretariat, Bhubaneswar
District: Khurda.
2. Director, Horticulture, Bhubaneswar
At/P.O.: Bhubaneswar, District: Khordha.
3. Deputy Director, Horticulture
Dhenkanal
At/P.O./District: Dhenkanal.
4. Assistant Director of Horticulture
Kamakhyanagar,
At/P.O.: Kamakhyanagar
District: Dhenkanal. … Opposite Parties.
W.P.(C) No.11155 of 2022 Page 1 of 38
Counsel appeared for the parties:
For the Petitioner : Mr. Dayananda Mohapatra,
Senior Advocate
along with
M/s. Manas Ranjan Pradhan,
Jyotirmay Barik,
Pranab Kumar Singh, AdvocatesFor the Opposite parties : Mr. Shantanu Das,
Additional Standing CounselP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 24.07.2025 :: Date of Order : 11.08.2025
O RDER
The propriety and legality of revision and re-sanction of
pay under the Revised Assured Career Progressing
Scheme promulgated under the Odisha Revised Scale of
Pay Rules, 2008 vide Letter No.1134/Hort., dated
19.07.2017 issued by the Deputy Director of
Horticulture, Dhenkanal and consequent revision of
annual increment in Scale of Pay Band-II at Rs.9300/-
to 34,800/- with Grade Pay of Rs.4200/- with effect from
01.05.2016 vide Order No.907/Hort., Dated 23.09.2017
passed by the Assistant Director of Horticulture,
Kamakhyanagar are questioned in this writ petition filed
under Articles 226 and 227 of the Constitution of India,
wherein the following prayer(s) are made:
W.P.(C) No.11155 of 2022 Page 2 of 38
―The petitioner, therefore, most humbly prays that this
Hon’ble Court be graciously pleased to issue rule Nisi
calling upon the Opposite Parties to show-cause as to why
Annexure-2 & 3 shall not be quashed and as to why the
Opp. Parties shall not be directed to quantify the
qualifying period of service from the date of joining on
10.09.1979 till date of retirement on 30.11.2016 including
the ad-hoc period and as to why the Opp. Parties shall not
be directed to extend the pay revision with effect from
01.01.2016 and accordingly to release all consequential
benefits including retiral benefits on the basis of last pay
drawn as on the date of retirement and interest accrued
thereupon;
And if the Opposite Parties fail to show cause or show
insufficient cause to make to said rule absolute by
issuance of an appropriate writ (s), order (s), direction (s)
as this Hon’ble Court may deem fit and proper;
And/or to pass such other order(s), direction(s) as this
Hon’ble Court may deem fit and proper under the facts
and circumstances of the present case.
And for which act of kindness the petitioner shall as in
duty bound ever pray.‖
Facts:
2. Facts, as adumbrated by the petitioner, reveal that he
joined in service on 10.09.1979 as Probation Gardener
in the scale of pay of Rs.215-3-233-EB-4-265 per month
by Order No.3745, dated 10.09.1979 and continued to
receive the sanctioned increment till 30.11.1983. On and
from 01.12.1983, being appointed to function as Lower
Division Clerk-cum-Typist on ad hoc basis by Office
W.P.(C) No.11155 of 2022 Page 3 of 38
Order No.572, 25.11.1983. He worked as Junior Clerk-
cum-Typist in officiating post with effect from
01.12.1983. The petitioner was appointed in the post of
Junior Clerk-cum-Typist by Office Order No.437, dated
22.05.1985 and joined in the said post on 23.05.1985 on
regular basis. He has been allowed annual increments
with surrendered leave and earned leave, etc. He was
accorded promotion to the post of Senior Clerk on
28.02.2009 and was allowed to retire in the said post on
30.11.2016 on attaining the age of superannuation.
2.1. His last pay drawn was Rs.12,620/- with Grade Pay of
Rs.4,600/-. By order dated 23.09.2017, the Assistant
Director of Horticulture, Kamakhyanagar reduced the
pay to the Pay Band of Rs.11,720/- against Grade Pay of
Rs.4,200/-. Accordingly, revision under the Revised
Assured Career Progression Scheme (hereinafter referred
to as “RACPS”) promulgated under the Odisha Revised
Scales of Pay Rules, 2008 (“ORSP Rules, 2008”, for
convenience) has been made at 1st, 2nd and 3rd stages,
i.e., on completion of 10, 20 and 30 years of service.
2.2. Though the petitioner sought for supply of reasons, the
same was never paid any heed to, which led to
submission of a grievance petition dated 30.07.2018
before the Director of Horticulture, Odisha,
Bhubaneswar vide Annexure-4. As the same is kept
pending without any response from the opposite parties,
W.P.(C) No.11155 of 2022 Page 4 of 38
the petitioner has craved to invoke the provisions of
Articles 226 and 227 of the Constitution of India of this
Court.
Rival contentions and submissions:
3. Sri Dayananda Mohapatra, learned Senior Advocate
being assisted by Sri Manas Ranjan Pradhan, learned
Advocate taking this Court to entries reflected in the
Service Book, submitted that there is no dispute nor can
it be disputed that the petitioner entered into the service
on 10.09.1979, and accordingly, he completed ten years,
twenty years and thirty years as on 10.09.1989,
10.09.1999 and 10.09.2009 respectively.
3.1. He submitted that even though the petitioner was
appointed as Probation Gardener as temporary
employee, he was given Pay Scale of Rs.215-235-EB-4-
265/- per month, and was also being granted annual
increment, sanctioned leave, etc. which admits of no
doubt that the petitioner has entered into the
Government service on 10.09.1979. Relying on the
entries made in the Service Book, it is vehemently
submitted that subsequently, the performance of the
petitioner being found to be suitable having merit, he
has been functioning as Lower Division Clerk-cum-
Typist, Junior Clerk-cum-Typist and also Senior Clerk.
As the promotion to the post of Senior Clerk was
W.P.(C) No.11155 of 2022 Page 5 of 38
accorded to him on 30.11.2016, by the said date, thirty
years of Government service had already been crossed/
completed. Therefore, he submitted that the petitioner is
entitled to 1st, 2nd and 3rd RACPS.
3.2. Sri Dayananda Mohapatra, learned Senior Advocate
opposing the unilateral action of the Assistant Director
of Horticulture, Kamakhyanagar in revising the already
sanctioned scale(s) of pay in Pay Band-II and annual
increment by Order dated 23.09.2017 pursuant to Letter
dated 19.07.2017 of the Deputy Director of Horticulture,
Dhenkanal submitted that such action not only smacks
arbitrariness but also fanciful and capricious.
3.3. He submitted that non-disposal of the grievance petition
dated 30.07.2018 is indicative of the fact that the
opposite parties-authorities have committed flagrant
violation of principles of natural justice affecting the civil
consequences adversely and, therefore, he insisted for
issue of writ of mandamus to the opposite parties to
appropriately fix the pay by taking into consideration the
entry into Government service as “10.09.1979” as per
Entry No.10 of the Service Book vide Annexure-1.
Accordingly, he fervently requested for allowing the
prayers made in the writ petition.
W.P.(C) No.11155 of 2022 Page 6 of 38
3.4. Having referred to the counter affidavit filed by the
opposite parties, Sri Dayananda Mohapatra, learned
Senior Counsel strongly refuted allegations levelled
against the petitioner and put forth his argument that
scathing remarks on the conduct of the petitioner and
vague allegations levelled against him– though being
satisfied with the performance he was allowed to work as
Lower Division Clerk-cum-Typist, Junior Clerk-cum-
Typist and also in the promotional post of Senior Clerk
before his superannuation– would reveal that the
authorities are hell-bent to deny the petitioner of
legitimate dues attune with the RACPS and the attitude
of the opposite parties is unwholesome and the approach
is unbecoming of an authority who has sworn the
counter affidavit without any material to substantiate.
4. On being granted opportunity to file response to the
averments and contents of the writ petition, the
Assistant Director of Horticulture, opposite party No.4
filed counter affidavit on 15.02.2024 being authorized by
opposite party No.2-Director, Horticulture,
Bhubaneswar. As if maintenance of the Service Book
was within the ken of performance of the duty of the
petitioner himself, opposing the date of entry into
Government service, it has been affirmed as follows:
“8. That in reply to the averments made in Para-3 of the
Writ Petition, it is humbly submitted that, theW.P.(C) No.11155 of 2022 Page 7 of 38
petitioner was appointed as Probationary Gardener
(Mali) in Group-D service on ad hoc basis by the
Deputy Director of Agriculture, Bolangir on
10.09.1979 and continued up to 06.04.1983 by
violating the procedure of ad hoc appointment
without any break. Subsequently, he was
transferred from the control of the Deputy Director of
Agriculture, Bolangir to the control of Horticulturist
Patnagarh and joined as such in the same post.
When he was in Gardener post, again he appointed
as Jr. Clerk-cum-Typist on ad hoc basis from
11.12.1983 and continued up to 22.05.1985 without
any break violating the procedure. Again, the
petitioner appointed as Jr. Clerk-cum-Typist on
regular basis by the Horticulturist Patnagarh
violating the OMS Rules, 1985 (Method of
Recruitment to the post of Jr. Clerks in the District
Offices) Rules, 1985 and continued up to 30.09.1993
in the same post and in the same establishment.
But, the petitioner has availed all the financial
benefits on ad hoc appointment such as Increment,
Leave Salary and Surrender Leave Salary as a
regular Government servant which is not admissible
to Government Servant. It is presumed that either
he has done intentionally or misguided the
concerned authority as he was dealing
assistant during the period. Hence, the benefits
availed by the petitioner is not authenticated.
12. That in reply to the averments made in Para-8 of
Writ Petition, it is humbly submitted that, as the
petitioner himself was the Dealing Assistant of the
Establishment Section, he is solely responsible to
obey and implement the Govt. Rules and regulations.
But in this case, it is presumed that either he
W.P.(C) No.11155 of 2022 Page 8 of 38
has intentionally done mistake or by
misguiding the authority has availed all the
financial benefits.
15. That in reply to the averments made in Para-11 of
the Writ Petition, it is humbly submitted that, as per
RACP Rules, 2013 and as per instruction of the
Director of Horticulture, Odisha, Bhubaneswar the
pay of the petitioner has been revised. Further it is to
mention here that, the petitioner has maintained his
own Service Book from the period of entry in to Govt.
service till to his retirement, as he was the Dealing
Assistant of the Establishment Matter and was the
custodian of his Service Book and therefore, all the
discrepancies made by him was by
manipulating the Govt. Rules and regulations
as per his own sweet will. In many places he
has tampered his own Service Book, as there is
no possibility to see the service book by others.
On verification, it is presumed that perhaps he
has misguided his authority. After his
retirement, the entire irregularities came to the
notice and the matter taken to the knowledge
of the Director of Horticulture, Odisha,
Bhubaneswar after obtaining the legal
clarification action taken to regularize his
services as it required for smooth preparation
of his Pension Paper. But it is the matter of regret
that the petitioner is not mentally prepared to accept
the truth. In spite of all, the original Service Book
along with statement of rectification in the Service
Book has been sent to the Director of Horticulture,
Odisha, Bhubaneswar vide letter No.360/ Hort.
Dt.16.02.2018 of the DDH, Dhenkanal for scrutiny
and for issuance of suitable instruction for further
W.P.(C) No.11155 of 2022 Page 9 of 38
action. But, till today no action has been taken by
the Director of Horticulture, Odisha, Bhubaneswar
and the Service Book is not returned.‖
4.1. Having not been able to demonstrate with evidence or
material on record to counter attack the argument of Sri
Dayananda Mohapatra, learned Senior Counsel with
respect to aforesaid remarks against the petitioner,
laying stress on Letter No.4ENG(H-3)16/2014-3/14369/
Hort., dated 16.11.2016 of Administrative Officer issued
from the Office of the Director of Horticulture, Odisha,
Bhubaneswar to the Deputy Director of Horticulture,
Dhenkanal, it is arduously submitted by Sri Shantanu
Das, learned Additional Standing Counsel appearing for
the opposite parties that being initially appointed as
Probationary Gardener and thereafter in the post of
Lower Division Clerk/Junior Clerk on ad hoc basis with
effect from 10.09.1979 to 22.05.1985, but regularized
with effect from 23.05.1985 in the post of Junior Clerk-
cum-Typist, the entry into Government service of the
petitioner for all practical purposes ought to be taken as
23.05.1985. Therefore, the pay as sanctioned to the
petitioner being found to be erroneous though such error
continued till his retirement, the authorities are
competent to revise the same and fix his pay
appropriately. Since the error could be perceived at a
later stage after his retirement, proper calculation was
made and the pay has been revised.
W.P.(C) No.11155 of 2022 Page 10 of 38
4.2. A valiant attempt was made by Sri Shantanu Das,
learned Additional Standing Counsel to urge that the
date of entry into Government service could not have
been treated to be “10.09.1979” as claimed by the
petitioner, rather the effective date of regularization, i.e.,
“23.05.1985” in the post of Junior Clerk-cum-Typist is
the relevant date for the purpose of computation of
benefits emanating from the RACPS under the ORSP
Rules, 2008. He submitted that Letter dated 19.07.2017
of the Deputy Director of Horticulture, Dhenkanal
(Annexure-C/4 of the counter affidavit) and Order dated
23.09.2017 of the Assistant Director of Horticulture,
Kamakhyanagar (Annexure-3) are in conformity with the
said Scheme, and the same may not need any
interference by this Court since the Authorities have
recomputed the fixation of pay and annual increment
taking into account effective date as “23.05.1985”.
5. In reply, Sri Dayananda Mohapatra, learned Senior
Advocate supplemented by laying emphasis on
paragraph-6 of the Rejoinder Affidavit filed by the
petitioner and contended that the approach of the
opposite parties is misconceived and misdirected,
inasmuch as no rationality is attached to the contents of
counter affidavit. Repelling the arguments advanced by
the learned Additional Standing Counsel with reference
to the contents of the counter affidavit, the learned
W.P.(C) No.11155 of 2022 Page 11 of 38
Senior Counsel demonstrated that the counter affidavit
as drafted and filed is not in consonance with the entries
made in the Service Book. He was vociferous in his
argument that the opposite parties could not have made
illogical aspersions on the petitioner and the allegation
of manipulation of Service Book at his behest is
unfounded. False assertions in the affidavits on behalf of
the opposite parties are required to be addressed to
sternly. Casual drafting of counter affidavit goes to show
the lethargic and lackadaisical attitude of the opposite
parties only to thwart legitimate payments to the
petitioner.
5.1. The opposite parties have not disputed the date of
engagement of the petitioner as “Gardener” on
10.09.1979. Therefore, the action of the Authorities is
not above reproach in avoiding grant of pay scale at
appropriate pay band and grade pay in terms of
entitlement envisaged under the RACPS.
Hearing
6. Since the petitioner got retired in the year 2016 from
Government service and at this age of around 69 years
seeks fixation/refixation of pay so as to appropriately be
granted with pensionary benefits, this matter is taken up
for final hearing on the consent of the counsel for the
respective parties as the pleadings are complete.
W.P.(C) No.11155 of 2022 Page 12 of 38
6.1. After arguments were advanced by counsel for both
sides, hearing was concluded. The matter was kept
reserved for preparation and pronouncement of
judgment.
Discussions:
7. Perusal of record relating to duplicate copy of Service
Book (vide Annexure-1), reveals that:
―*** *** ***
10. Date of entry in
Government Service - Dt.10.9.79 F.N.‖
7.1. To ascertain the veracity of allegation against the
petitioner by way of counter affidavit, at the outset this
Court ventures to examine the scope and involvement of
the petitioner in manipulating the Service Book. On a
query from the Bench during the course of hearing, Sri
Shantanu Das, learned Additional Standing Counsel
fairly conceded that no material is available on record to
affirm such fact. It is not disputed and denied by the
learned Additional Standing Counsel that the
maintenance of Service Book is the domain of the
employer, but not the petitioner-employee. It is also
conceded that there was no scope for an employee, like
the petitioner, to have any scope to tamper with the
original Service Book.
W.P.(C) No.11155 of 2022 Page 13 of 38
7.2. Though it is alleged by way of counter affidavit, no
adverse material is placed on record by the opposite
parties to impeach such document (the Service Book),
which is placed on record (Annexure-1 enclosed to the
writ petition). Therefore, such entries in the Service Book
cannot be said to be incorrect and there was no occasion
for the petitioner to manipulate. In the counter affidavit
mere averments have been made asserting that the
petitioner has intentionally misguided and misdirected
the authorities to enter the date of entry in Government
service as “10.09.1979”. However, the learned Additional
Standing Counsel could not justify such statement made
by the Assistant Director of Horticulture in the counter
affidavit.
7.3. Under the above circumstances, this Court holds that
the allegation against the petitioner in the counter
affidavit filed by the opposite parties is unfounded and
unsubstantiated. Such mischievous statement on the
part of the opposite parties is unwholesome, as it is
admitted by the learned Additional Standing Counsel
that the maintenance and custody of the Service Book
remained with the employer. However, since the
petitioner is at the age of around 68-69 years seeking for
fixation of his pension appropriately, leaving such aspect
there, this Court now proceeds to discuss the merit of
the case.
W.P.(C) No.11155 of 2022 Page 14 of 38
8. Sri Dayananda Mohapatra, learned Senior Advocate put
forth his argument by referring to paragraphs-8, 12 and
15 of the counter affidavit (extracted hereinabove in
verbatim) submitted that by way of affidavit opposite
party No.4-Assistant Director of Horticulture,
Kamakhyanagar used the words „presumed‟,
„intentional‟, „misguided‟ and „tampered‟, and contended
that when it is conceded that for making entries in the
Service Book the petitioner had no role, there is no iota
of evidence brought on record by the said authority,
opposite party No.4, to evince that the petitioner had
“misdirected”, “misguided” or “tampered” the entry in the
Service Book.
8.1. This Court finds force in the argument of the learned
Senior Counsel and therefore, it is perceived that there is
no doubt that the entry “10.09.1979” as reflected in the
Service Book against serial No.10 with the Heading
“Date of entry in Government Service” is correct
depiction of fact.
8.2. With that perspective, when the present case is
examined, this Court is one with the submission of Sri
Dayanananda Mohapatra, learned Senior Advocate that
the petitioner has completed 10, 20 and 30 years of
service from the date of entry as on 10.09.1989,
10.09.1999 and 10.09.2009 respectively.
W.P.(C) No.11155 of 2022 Page 15 of 38
8.3. It is manifest from the record that the petitioner was
initially appointed as Probation Gardener in pay scale of
Rs.215-3-233-EB-4-265 per month by Order No.3745,
dated 10.09.1979 which was verified with reference to
“pay acquittance roles and found correct”. This fact is
certified by the Project Officer (Horticulture), Balangir in
the Service Book. The said Service Book establishes the
fact that he was accorded sanction to receive annual
increments. Thereafter he was posted as Lower Division
Clerk-cum-Typist on ad hoc basic and subsequently
regularized in the post of Junior Clerk-cum-Typist and
retired in the promotional post of Senior Clerk.
8.4. With respect to counting the period of service in ad hoc
engagement and probation, in V. Vincent Velankanni Vrs.
Union of India, (2024) 10 SCR 126 the observations run
thus:
―30. It is a well-settled proposition that once an
incumbent is appointed to a post according to
the rules, his seniority has to be reckoned from
the date of the initial appointment and not
according to the date of confirmation, unless
the rules provide otherwise.
31. In the case of L. Chandrakishore Singh Vrs. State of
Manipur and Others, (1999) Supp. 3 SCR 323 =
(1999) 8 SCC 287 this Court held that in cases of
probationary or officiating appointments
which are followed by a confirmation, unless a
contrary rule is shown, the services rendered
W.P.(C) No.11155 of 2022 Page 16 of 38
as the officiating appointment or on probation
cannot be ignored while reckoning the length
of service for determining the position in the
seniority list. This view has been reiterated in the
case of Ajit Kumar Rath Vrs. State of Orissa and
Others, (1999) Supp.4 SCR 302 = (1999) 9 SCC 596.
32. The Constitution Bench of this Court in Direct Recruit
Class II Engg Officers’ Assn. Vrs. State of
Maharashtra, (1990) 2 SCR 900 = (1990) 2 SCC 715
stated the legal position with regard to inter se
seniority of direct recruits and promotees and while
doing so, inter alia, it was held that once an
incumbent is appointed to a post according to rules,
his seniority has to be counted from the date of his
appointment and not according to the date of his
confirmation.
33. This Court summarised the legal principles with
regard to the determination of seniority in Pawan
Pratap Singh and Others Vrs. Reevan Singh and
Others, (2011) 2 SCR 831 = (2011) 3 SCC 267 in the
following terms:
‗45. From the above, the legal position with regard
to determination of seniority in service can be
summarised as follows:
(i) The effective date of selection has to be
understood in the context of the service
rules under which the appointment is
made. It may mean the date on which the
process of selection starts with the
issuance of advertisement or the factum
of preparation of the select list, as the
case may be.
W.P.(C) No.11155 of 2022 Page 17 of 38
(ii) Inter se seniority in a particular service
has to be determined as per the service
rules. The date of entry in a particular
service or the date of substantive
appointment is the safest criterion for
fixing seniority inter se between one
officer or the other or between one group
of officers and the other recruited from
different sources. Any departure
therefrom in the statutory rules, executive
instructions or otherwise must be
consistent with the requirements of
Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be
granted from the backdate and if it is
done, it must be based on objective
considerations and on a valid
classification and must be traceable to the
statutory rules.
(iv) The seniority cannot be reckoned
from the date of occurrence of the
vacancy and cannot be given
retrospectively unless it is so
expressly provided by the relevant
service rules. It is so because seniority
cannot be given on retrospective basis
when an employee has not even been
borne in the cadre and by doing so it may
adversely affect the employees who have
been appointed validly in the meantime.
34. Thus, it is trite that when an employee
completes the probation period and is
confirmed in service albeit with some delay,
W.P.(C) No.11155 of 2022 Page 18 of 38
the confirmation in service shall relate back to
the date of the initial appointment. Any
departure from this principle in the form of statutory
rules, executive instructions or otherwise must be
consistent with the requirements of Articles 14 and
16 of the Constitution of India.
***
45. This Court has time and again dealt with the effect
of altering the seniority list at a belated stage and
how it may adversely affect the employees whose
seniority and rank has been determined in the
meantime. In this connection, reference may be
made to Malcom Lawrence Cecil D’Souza v. Union of
India and Others, (1976) 1 SCC 599 wherein this
Court held that:
‗9. Although security of service cannot be used as
a shield against administrative action for
lapses of a public servant, by and large one of
the essential requirements of contentment and
efficiency in public services is a feeling of
security. It is difficult no doubt to guarantee
such security in all its varied aspects, it should
at least be possible to ensure that matters like
one’s position in the seniority list after having
been settled for once should not be liable to be
reopened after lapse of many years. *** Raking
up old matters like seniority after a long time is
likely to result in administrative complications
and difficulties. It would, therefore, appear to
be in the interest of smoothness and efficiency
of service that such matters should be given a
quietus after lapse of some time.’W.P.(C) No.11155 of 2022 Page 19 of 38
46. In R.S. Makashi and Others Vrs. I.M. Menon, (1982)
2 SCR 69 = (1982) 1 SCC 379 this Court observed as
follows:
‗33. *** We must administer justice in accordance
with law and principles of equity, justice and
good conscience. It would be unjust to
deprive the respondents of the rights
which have accrued to them. Each person
ought to be entitled to sit back and
consider that his appointment and
promotion effected a long time ago would
not be set aside after the lapse of a
number of years. ***’
47. In K.R. Mudgal and Others Vrs. R.P. Singh and
Others, (1986) 3 SCR 993 = (1986) 4 SCC 531 this
Court observed in the following terms:
‗2. *** A Government servant who is appointed
to any post ordinarily should at least
after a period of 3 or 4 years of his
appointment be allowed to attend to the
duties attached to his post peacefully and
without any sense of insecurity.’
48. In B.S. Bajwa and Another Vrs. State of Punjab and
Others, (1997) Supp.6 SCR 451 = (1998) 2 SCC 523
this Court held that the seniority list should not
be reopened after a lapse of reasonable period
as it would disturb the settled position which
is unjustifiable. The relevant extract is as follows:
‗7. *** It is well settled that in service matters the
question of seniority should not be reopened in
such situations after the lapse of a reasonableW.P.(C) No.11155 of 2022 Page 20 of 38
period because that results in disturbing the
settled position which is not justifiable.***’ ***‖8.5. Taking cue from the above statement of law as
propounded by the Hon‟ble Supreme Court of India,
when the initial appointment of the petitioner is
considered as 10.09.1979 and the pay as granted to him
on completion of 10, 20 and 30 years of service from the
entry into the Government service, the same should not
be disturbed after his superannuation with effect from
30.11.2016.
8.6. By way of counter affidavit the opposite parties have not
brought on record any extant statutory Rules contrary to
what has been exposited in the above said judgment(s).
However, this Court notices the following provisions
contained in the Odisha Civil Services (Pension) Rules,
1992:
―14. Counting of service on contract.–
(1) A person who is initially engaged by the Government
on a contract basis for a specified period and is
subsequently appointed to the same or another post
in a temporary or substantive capacity in a
pensionable establishment without interruption of
duty, may opt either–
(a) to retain the Government contribution in the
contributory provident fund with interest
thereon including any other compensation for
that service; orW.P.(C) No.11155 of 2022 Page 21 of 38
(b) to agree to refund to the Government the
monetary benefits referred to in clause (a) or to
forgo the same if they have not been paid to
him and count in lieu thereof the service for
which the aforesaid monetary benefits paid or
have become payable.
(2) The option under sub-rule (1) shall be communicated
to the Appointing Authority under intimation to the
Accounts officer within a period of three months from
the date of issue of the order of transfer to
pensionable service or if the Government servant is
on leave on that day, within three months of his
return from leave.
(3) If no communication is received by the Appointing
Authority within the period referred to in sub-rule (2),
the Government servant shall be deemed to have
opted for the retention of the monetary benefits
payable or paid to him on account of service
rendered on contract.
19. Counting of service on Probation.–
Service on probation against a post if followed by
regular appointment in the same or another post
shall qualify for pension.
24. Counting of periods spent on training.–
The Government may, by order, decide whether the
time spent by a Government servant under training
(including a person under training immediately
before appointment under Government) shall count
as qualifying service.‖
W.P.(C) No.11155 of 2022 Page 22 of 38
8.7. In this connection, the following observation of the
Hon‟ble Supreme Court of India rendered in S.D.
Jayaprakash Vrs. Union of India, 2025 SCC OnLine SC
973 may be worthy of taking note of:
―8. This rule1 fell for consideration and interpretation in
State of Himachal Pradesh Vrs. Sheela Devi, (2023)
SCC OnLine SC 1272, where this Court held that
although Rule 2(g) of the Pension Rules excludes
contractual employees from their application, Rule
17 applies once such contractual employee is
regularised on a later date. The effect is that upon
regularisation, the Pension Rules become applicable
and Rule 17 requires that past service as a
contractual employee is to be taken into account for
calculating pension. In this light, and considering
that Rule 17 requires the regularised employee to
exercise an option to either retain the Government’s
contribution to Contributory Provident Fund, or to
refund such amount or forgo the same if they have
not been paid in lieu of counting the service period
for which such benefits may have been payable, this
Court in Sheela Devi (supra) issued the following
directions:
‗11. In view of the above reasoning, this court is of
the opinion that there is no merit in the appeal
however, the following directions are issued:
(i) The State shall take immediate steps to indicate the
mode and manner of exercising option by all the
employees concerned (who had been regularized1 Rule 17 of the Central Civil Services (Pension) Rules, 1972 is pari materia with
Rule 14 of the Odisha Civil Services (Pension) Rules, 1992.
W.P.(C) No.11155 of 2022 Page 23 of 38
after spells of contractual employment) regardless of
the dates on which they were engaged i.e. prior to
the year 2003 or subsequently, within a time frame,
of within eight weeks from today.
(ii) After receiving the options within the time indicated
in the notice, the concerned employee(s) who
exercise the relevant options should be notified
about the amounts they would have to remit in case
any amount towards contribution is required,
clearly.
(iii) The options should be processed and completed
within eight weeks from the last date of receiving
options.
(iv) Time limit for payment too should be indicated and
entire process should be completed within four
months and all orders fixing pensions or family
pension as the case may be, shall be issued.’
9. In light of the clear language of Rule 17 of the
Pension Rules as well as its interpretation in Sheela
Devi (supra), the contractual service period rendered
prior to the appellants’ regularisation in 2015 must
be counted towards the payment of their pensionary
benefits in accordance with the mechanism set out
in Rule 17. In line with the directions issued in
Sheela Devi (supra) extracted hereinabove, we direct
the respondent-Union of India to take immediate
steps and indicate the mode and manner for the
appellants to exercise the option provided under
Rule 17 of the Pension Rules as well as to notify the
amounts that the appellants would have to remit in
case they opt for grant of pension under the Rules.‖
W.P.(C) No.11155 of 2022 Page 24 of 38
8.8. The conspectus of the above would lead to consider that
the petitioner, though was appointed in the post of
Junior Clerk-cum-Typist on 23.05.1985 on regular basis,
being appointed as Lower Division Clerk-cum-Typist on
ad hoc basis by virtue of Office Order No.572, dated
25.11.1983 and got promotion to the Senior Clerk on
28.02.2009, his past service period as “probation”,
“temporary”, “officiating” and/or “ad hoc” cannot be said
to have been obliterated. Hence, as reflected in the
Service Book the date “10.09.1979” reflected against
Serial No.10 is to be reckoned as the date of entry into
Government service.
CONCLUSION & DECISION:
9. The unsubstantiated allegations against the petitioner as
made in the counter affidavit that he was instrumental
for reflecting the date of entry into Government service
as 10.09.1979 is liable to be discarded. This Court takes
into account the submissions of the learned Additional
Standing Counsel in this regard that the petitioner has
no active or tacit role in maintaining the Service Book. It
is the competent authority/employer who is responsible
for making entries in the Service Book and rightful
custody of the original Service Book. No contrary entry
being shown by the learned Additional Standing
Counsel, the entries in the copy of duplicate Service
Book as furnished to this Court by way of affidavit in the
W.P.(C) No.11155 of 2022 Page 25 of 38
writ petition vide Annexure-1 is considered to be true
and correct.
9.1. This Court in appreciation of the entries made in Service
Book by the predecessors-in-office of the present
incumbent, who were instrumental for making entries in
the Service Book, and such entries being taken into
consideration by the competent authorities his
performance since 1979 to 2016 was judged in proper
perspective, and the petitioner appears to have been
accorded promotion to the post of Senior Clerk in the
year 2016. Thus being fact, the petitioner could not be in
any way be said by way of counter affidavit for the first
time before this Court in reply to contents of the writ
petition that he had the occasion to misguide/misdirect
or manipulate the entries in Service Book during his
service tenure from 1979 till 2016. Not a single scrap of
paper is available or adduced as evidence by the
opposite parties by way of affidavit to show that the
petitioner has ever influenced or misguided any of the
authorities in maintenance of Service Book and was
involved in alleged manipulation.
9.2. It may be worthwhile to take note of following
uncontroverted reply/objection as contained in the
rejoinder affidavit filed by the petitioner in connection
with allegations made in the counter affidavit:
W.P.(C) No.11155 of 2022 Page 26 of 38
―6. That in reply to the averments made in paragraph 7
to 9 to the counter, it is humbly submitted that the
opposite parties admitted about the engagement of
the petitioner as Probationary Gardener on
10.09.1979 in a regular post till 06.04.1983.
Presently objections are raised about his
appointment made contrary to the procedure. The
opposite party also admitted about the transfer of
the petitioner and his appointment as a Junior Clerk-
cum-Typist on ad hoc basis from 11.12.1983 and
continuing on ad hoc basis till 22.05.1985 without
any break violating the procedure. It is submitted
that this allegation made after more than 33 years
are not sustainable and merits no consideration
That apart, his regularization in the post was formal
because of the fact he was also continuing as
regular employee and getting the increment on
approval of the higher authorities. The opposite
party admitted about the petitioner to have received
the increment admissible to Government servant but
then the petitioner is put of unnecessary allegation
on presumptions that he has done it intentionally get
it misguiding the concerned authority as he was
dealing assistant during the period. The office
having a Dealing Assistant dealing with
establishment is also to deal with his personal file
and is nothing new or extraneous which the
petitioner has discharged. There is no dispute that
the authority sanctioned the increment keeping their
eye and ear open and then raising such dispute on
technical and flimsy ground without any foundation
and basis, is not sustainable and merits no
consideration.
W.P.(C) No.11155 of 2022 Page 27 of 38
The Government is treated as an ideal employer and
it cannot behave the employee particularly the
retired employee for the reasons not attributable to
him and that to after 25 years of the benefits
extended. In view of the aforesaid, the contentions of
the opposite parties in this regard is nothing but
deliberate attempt to harass the petitioner so as to
deprived him the legitimate benefits while those
have been extended since 1979 and 1983, i.e., 40
years before. Accordingly, the contentions made in
these paragraphs of the counter merits no
consideration and such contentions are stoutly
denied.
***
8. That in reply to the averments made in paragraph
15 to 18 to the counter, it is humbly submitted that
the opposite parties reiterated the self-same
allegation concerning the petitioner holding the post
of clerk and dealing with his file though at no point
of time such contention raised while he was in job.
Besides, he is not the sanctioning authority of such
benefits due to employee. It is unfortunate to submit
that the petitioner is blamed to have got the things
done, though the records reveals about sanction of
the benefit(s) by a top level officer in the cadre of
Deputy Director and disbursement made by
concerned Authority till retirement of the petitioner.
That apart, there is no allegation of any
manipulation by the petitioner at any time nor is
borne out of the document referred to except the
allegation made against the petitioner on surmises
and presumption only. The petitioner should not be
subjected to unnecessary harassment on the basis
W.P.(C) No.11155 of 2022 Page 28 of 38
of such speculative allegations against him which is
not substantiated with materials but based mere
surmises and conjecture. Accordingly, those
contentions in these paragraphs of the counter are
stoutly denied.‖
9.3. Against such denial, nothing is brought on record to
repel any of assertions made by the petitioner.
Allegations made in the counter affidavit by the opposite
parties against the employee after his retirement for the
purpose of denying his legitimate dues without any
evidence is inappropriate, illogical and in absence of any
foundational factual evidence on record are inacceptable.
Such uncorroborated contents put forth by the opposite
parties are liable to be brushed aside having no bearing
on the adjudication of present case.
9.4. Having thus the scenario as emanating from the
documents forming part of record, the date of entry into
Government service of the petitioner is taken as
“10.09.1979”. This Court, bearing in mind the legal
perspective discussed in the foregoing paragraphs, is of
the opinion that the petitioner is entitled to the benefits
envisioned in the provisions of the RACPS under the
ORSP Rules, 2008, having completed 10, 20 and 30
years of service as on 10.09.1989, 10.09.1999 and
10.09.2009 respectively.
W.P.(C) No.11155 of 2022 Page 29 of 38
9.5. The above view finds 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 PartiesW.P.(C) No.11155 of 2022 Page 30 of 38
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.‖9.6. 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 theW.P.(C) No.11155 of 2022 Page 31 of 38
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
W.P.(C) No.11155 of 2022 Page 32 of 38
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
W.P.(C) No.11155 of 2022 Page 33 of 38
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.’W.P.(C) No.11155 of 2022 Page 34 of 38
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
W.P.(C) No.11155 of 2022 Page 35 of 38
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.‖
9.7. 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
W.P.(C) No.11155 of 2022 Page 36 of 38
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.‖9.8. This Court, having discussed the gamut of the RACPS
under the ORSP Rules, 2008, in Renuka Dei Vrs. State of
Odisha, 2025 SCC OnLine Ori 2978, does not feel it
apposite to reiterate the perspective by burdening this
Judgment. Suffice to say, regard be had to the
observations made with respect to the entitlement of
benefits of pay for fixing/refixing as envisaged under the
RACPS under above Rules, 2008.
10. Since it is brought to the notice of this Court that after
issue of Letter No.1134/Hort., dated 19.07.2017
W.P.(C) No.11155 of 2022 Page 37 of 38
(Annexure-2) and Order No.907/Hort. Dated 23.09.2017
(Annexure-3), the petitioner has made grievance petition
dated 30.07.2018 (Annexure-4) before the Director of
Horticulture, Bhubaneswar (opposite party No.2) and the
same is said to have been pending for consideration of
appropriate modification of pay attune with the
provisions of the RACPS under the ORSP Rules, 2008,
this Court while setting aside the order in Annexure-3
Signature Not and the observations in Letter under Annexure-2, directs
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
opposite party No.2 to consider said grievance petition
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication pragmatically by taking into account the observations
Location: ORISSA HIGH
COURT, CUTTACK
Date: 11-Aug-2025 19:27:03 made hereinabove.
11. It is hoped and trusted that the entire exercise shall be
completed by the competent opposite party within a
period of eight weeks from date.
12. 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
High Court of Orissa, Cuttack
The 11th August, 2025//MRS/Laxmikant
W.P.(C) No.11155 of 2022 Page 38 of 38