Orissa High Court
Sri Biren Kumar Biswal vs State Of Odisha on 2 January, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.28862 of 2023
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Sri Biren Kumar Biswal
Aged about 60 years
Son of Late Duryodhan Biswal
At: Rayapur, P.O.: M.G. Khamar
P.S.: Patakura
District: Kendrapara. … Petitioner.
-VERSUS-
1. State of Odisha
Represented through
Principal Secretary
General Administration and
Public Grievance Department
Lok Seva Bhawan, Bhubaneswar
District: Khordha.
2. Nodal Officer
Odisha Administrative Tribunal
Bhubaneswar, At/P.O.: Bhubaneswar
District: Khordha … Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Sameer Kumar Das,
Prakash Kumar Behera,
Nirajan Jena, AdvocatesW.P.(C) No.28862 of 2023 Page 1 of 141
For the Opposite parties : Mr. Arnav Behera,
Additional Standing CounselP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 12.09.2024 :: Date of Judgment : 02.01.2025
J UDGMENT
MURAHARI SRI RAMAN, J.–
Aggrieved by Office Order bearing No.E(ii)/24/2023/
688/OAT, dated 30.05.2023 of the Nodal Officer
issued from the Odisha Administrative Tribunal,
Bhubaneswar (Annexure-7) approving the revision of
pay recommended by the Screening Committee in its
Proceeding dated 28.02.2023, which was held to
comply with the direction contained in the Order dated
13.01.2023 passed by this Court in W.P.(C) No.12359
of 2022, the petitioner beseeching quashment of said
Order came up in the instant writ petition claiming
following relief(s):
―Under the above circumstances, it is therefore humbly
prayed that the Hon’ble Court be graciously pleased to
quash the Office Order No. 688/OAT, dated 30.05.2023
of the opposite party No.2 under Annexure-7 and
consequential Letter dated 21.08.2023 under Annexure-
8;
W.P.(C) No.28862 of 2023 Page 2 of 141
And further be please to direct the opposite parties to
revise the pay of the petitioner in the 3rd Revised
Assured Career Progression on completion of 30 years
of service in Level-10 of the Pay Matrix with all
consequential benefits by restoring his pay revision
under Annexure-4;
And also revise his pension and pensionary benefits
and to grant him all consequential service and financial
benefits including arrears within a stipulated period as
deem fit and proper;
And/or pass any other appropriate writ/writs, order/
orders, direction/directions in the fitness of the case.
And for this act of kindness as in duty bound the
petitioner shall ever pray.‖Facts as stated in the writ petition:
2. The petitioner having joined as Junior Grade Typist in
the Odisha Administrative Tribunal, Bhubaneswar on
04.10.1990, got promotion to the post of Senior Grade
Typist on 01.02.2019. As per the Odisha
Administrative Tribunal (Recruitment and Conditions
of Service and Officers and Staff) Rules, 1999 (herein
after referred to as “OAT Staff Rules, 1999”), which
came into force with effect from 03.09.1999, the next
promotional avenue is the post of “Senior Assistant”.
2.1. On the recommendations of Fitment Committee, the
State Government employees are granted AssuredW.P.(C) No.28862 of 2023 Page 3 of 141
Career Progression (“ACP”, for short) on completion of
15, 25 and 30 years of service akin to the Time Bound
Advancement (“TBA”, for short) provisions of the
Odisha Revised Scales of Pay Rules, 1998. Such
provision was revised by a Finance Department
Resolution dated 06.02.2013 granting three financial
upgradation under the Revised Assured Career
Progression Scheme (“RACPS”, for convenience) on
completion of 10, 20 and 30 years.
2.2. As the petitioner was to get his 2nd RACP in the
promotional grade of Senior Assistant, his pay was
fixed in the scale of pay Rs.9,300/- — Rs.34,800/-
with Grade Pay Rs.4,200/- with financial benefit with
effect from 01.01.2013. It has further been revised in
terms of the Odisha Revised Scale of Pay Rules, 2008
(“ORSP Rules, 2008”, for convenience), which he has
been in receipt of.
2.3. While the petitioner was so continuing and
discharging his duty, the Odisha Administrative
Tribunal, Bhubaneswar was abolished by virtue of
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training) Notification F.
No. A-11014/10/2015-AT [G.S.R. 552(E).], dated 2nd
August, 2019), pursuant to which some of the
employees were deputed and permanently absorbed in
W.P.(C) No.28862 of 2023 Page 4 of 141
other Departments of the State Government, but the
petitioner and certain other employees were allowed to
continue in the said Tribunal in order to do the
needful in transferring the records to this Court and
they were assigned with administrative functions.
After the closure of the Tribunal the powers and
functions of the Registrar of the Odisha Administrative
Tribunal were vested with “Nodal Officer”/”Officer-on-
Special Duty, an officer borne in the Odisha
Administrative Service Cadre.
2.4. The Nodal Officer by Office Order No.3367–
E(vii)/73/2021/OAT, dated 16.11.2021 while stating
the petitioner to be eligible to get 3rd financial
upgradation under Modified Assured Career
Progression Scheme (“MACPS”, for brevity) with effect
from 04.10.2020 on completion of 30 years of service,
re-fixed the scale of pay at Rs.5,200/- — Rs.20,000/-
with Grade Pay of Rs.2,800/- in Level-8 by rectifying/
reducing/revising the pay granted in 2nd RACPS,
which had already been granted at Rs.9,300/- —
Rs.34,800/- with Grade Pay of Rs.4,200/- with effect
from 01.01.2013.
2.5. Claiming such revision vide Order dated 16.11.2021 is
erroneous and contrary to what has been expounded
by a Division Bench of this Court in State of Odisha
W.P.(C) No.28862 of 2023 Page 5 of 141
Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016,
disposed of by Judgment dated 27.06.20161, the
petitioner contended that the pay fixation as made in
Office Order No.2152–E(ii)/45/2014, dated
06.03.2014 (Annexure-4) was reasonable and in
conformity with the rules governing the field.
Therefore, assailing said Order dated 16.11.2021, he
approached this Court by way of filing writ petition,
giving rise to W.P.(C) No.12359 of 2022, which came to
be disposed of by a Single Bench vide Judgment dated
13.01.2023 with a direction to the Nodal Officer to
place the matter before the Screening Committee
which would take decision afresh after affording
opportunity to the petitioner to furnish show cause
reply.
2.6. In pursuance thereof, show cause reply being
furnished by the petitioner, the opposite party No.2,
made the following observation in the Order dated
30.05.2023:
―***
And whereas, the following Rules/Notifications/
Resolutions which were in vogue at the time of grant of
2nd RACP are meticulously examined as it is revealed
from the proceedings dated 28.02.2023 in favour of the
present petitioners:
1 Reported as State of Odisha Vrs. Bihari Lal, 2016 SCC OnLine Ori 333.
W.P.(C) No.28862 of 2023 Page 6 of 141
1. Resolution of Finance Department vide
No.3560/F., dated 06.02.2013.
2. Resolution of the General Administration & Public
Grievance Department vide No.3894/Gen., dated
09.02.2018.
3. Odisha Administrative Tribunal (Recruitment and
Conditions of Service of Officers and Staff) Rules,
1999.
And whereas, the Screening Committee in its meeting
dated 28.02.2023, have decided to fix the pay as per
Annexure-‗A’ & ‗B’ attached to the proceedings of the
Screening Committee dated 28.02.2023.
And whereas, the proceedings of the Screening
Committee Meeting held on 28.02.2023 has been
approved by the General Administration & Public
Grievance Department and communicated vide Letter
No. 14938/Gen., dated 22.05.2023.
Now therefore, upon approval of the recommendations
of the Screening Committee dated 28.02.2023, the pay
fixation in favour of Sri Ratnakar Sahoo, Senior Grade
Typist and Sri Biren Kumar Biswal, Senior Grade Typist
of Odisha Administrative Tribunal are hereby approved
as per Annexure-‘A’ & ‘B’ enclosed herewith as per
Orders dated 13.01.2023 of the Hon’ble High Court of
Orissa passed in the W.P.(C) No.12358/2022 and
W.P.(C) No.12359/2022 respectively.
The above order is come into force with immediate
effect.‖
W.P.(C) No.28862 of 2023 Page 7 of 141
2.7. As a sequel to the above order, Letter bearing
No.1225– E(vii)/2/2023/335/OAT, dated 21.08.2023
has been issued by the Officer-on-Special Duty,
Odisha Administrative Tribunal, Bhubaneswar with
the following instructions seeking recovery of excess
amount already paid to the petitioner:
―With reference to the Orders on the subject cited, it is
stated here that an excess amount of salary to the tune
of Rs.3,75,255/- (rupees three lakhs seventy-five
thousand and two hundred fifty-five only) has been
drawn and disbursed in your favour during your
service period. A copy of the excess drawal particulars
are enclosed herewith for your reference.
You are, therefore, requested to submit your reply
within 10 days in support of your stand failing which
the above action will be considered as final and
recovery of the excess drawal shall be effected.‖2.8. Dissatisfied with the manner of disposal of grievance
with reference to the material particulars submitted in
the reply to show cause dated 20.02.2023 (Annexure-
P/2 series of the counter affidavit) and erroneous
approach of the opposite parties qua the averments, as
taken note of in the Judgment dated 13.01.2023
rendered in W.P.(C) No.12359 of 2022 (Annexure-5),
the petitioner preferred to move this Court in second
round of litigation seeking to question the legality of
Order dated 30.05.2023 of the opposite party No.2
W.P.(C) No.28862 of 2023 Page 8 of 141
(Annexure-7) and the propriety of instructions
contained in the Letter dated 21.08.2023 (Annexure-
8).
Counter affidavit of the opposite parties:
3. Laying emphasis on the OAT Staff Rules, 1999, the
opposite parties affirmed that the post of Senior
Assistant is filled up by way of promotion from among
the Junior Assistant or the Store Keeper of the Odisha
Administrative Tribunal who have rendered three
years of service and such employee must have passed
the Preliminary Accounts Examination conducted by
the Board of Revenue/Madhusudan Das Institute of
Accounts and Finance. It is also provided that 10% of
the vacancies in the Cadre of Senior Assistant in a
year is required to be filled up from among the Senior
Grade Typist/Senior Grade Diarist/Senior Grade
Recorder of the Odisha Administrative Tribunal who
have passed matriculation examination and rendered
10 years of continuous service as such on the 1st day
of January in which the recruitment is made. Though
the post of Senior Assistant is the promotional post of
Senior Grade Typist, it is not within the Cadre as the
Senior Grade Typist has to compete with the Senior
Grade Diarist and Senior Grade Recorder.
W.P.(C) No.28862 of 2023 Page 9 of 141
3.1. Explaining further it is asserted that a Senior Grade
Typist may be promoted to the post of Senior Assistant
if he is found eligible in his Cadre whereas a Junior
Assistant is promoted to the post of Senior Assistant,
if he is found eligible in his Cadre. In view of
Paragraph 10 of RACPS vide Finance Department
Resolution dated 06.02.2013, ―the employees in
isolated/ex-cadre posts not having any promotional
hierarchy will get next higher Grade Pay as per the First
Schedule of the Odisha Revised Scales of Pay Rules,
2008 with the interpolations, if any introduced
subsequently‖.
3.2. It has been asserted in the counter affidavit that:
―17. That, in this view of the matter, the fixation of pay
of the petitioner at Rs.9,560/- + Grade Pay
Rs.4,200/- (Pay Band-2) with effect from
01.01.2013 and at Rs.10,290/- + Rs.4,200/- with
effect from 01.10.2013, in the scale of pay of
Rs.9,300/- — Rs.34,800/- instead of being fixed
at Rs.9560/- + Grade Pay 2,800/- (Pay Band-I)
with effect from 01.01.2013 and at Rs.10,290/- +
Grade Pay Rs.2,800/- with effect from
01.10.2013, was incorrect. The error was pointed
out by the Screening Committee in its meeting
dated 21.09.2021 and recommended that instead
of sanctioning the Grade Pay of Rs.2,800/- in Pay
Band-1 next to the Grade Pay of Rs.2,400/- while
fixing the Pay and Grade Pay of the petitioner
after grant of the 2nd RACP, inadvertently the pay
W.P.(C) No.28862 of 2023 Page 10 of 141
of the petitioner was fixed in the initial Pay Band
of Group-B, i.e., Rs.9,300/- — Rs.34,800/- with
Grade Pay of Rs.4,200/- which should have been
fixed in Pay Band-I, i.e., Rs.5,200/- —
Rs.20,200/- with Grade Pay of Rs.2,800/-. ***
18. The State Government implemented the Odisha
Revised Scale of Pay Rules, 2017, on the basis of
recommendations made by the 7th Central Pay
Commission and Fitment Committee constituted by
Finance Department Government of Odisha with
effect from 01.01.2016. Since the pay of the
petitioner is to be revised with effect from
01.01.2013, his pay fixed subsequent to
introduction of the Odisha Revised Scale of Pay
Rules, 2017 is also revised. According to Rule 7 of
the Odisha Revised Scales of Pay Rules, 2017, to
derive the new pay, the pay fixation was needed
to be done in Schedule-III of the said Rules, on the
basis of old pay 01.01.2016, following which the
pay of the petitioner requires to be revised in
Level-6 of the Pay Matrix. The example of the
above pay fixation has been given in the form of
illustration-4 in the Odisha Revised Scales of Pay
Rules, 2017. ***
30. In reply to the averments made in paragraph 6 to
the writ petition, it is humbly submitted that the
Government in Finance Department have
introduced Revised Assured Career Progression
Scheme vide Resolution No.3560/F., dated
06.02.2013. This Scheme provides for three
financial upgradation in a Cadre counted from the
direct entry grade on completion of 10/20/30
years of service. It provides for the promotional
W.P.(C) No.28862 of 2023 Page 11 of 141
post Grade Pay in case of Cadres having the
promotional hierarchy and next higher Grade Pay
as per First Schedule of ORSP Rules, 2008 for the
isolated/ex-Cadre posts. It is further humbly
submitted that Finance Department in Letter
No.1738/F., dated 20.01.2014 have clarified at
point number 12 that ―the Grade Pay of a
promotional post which belongs to another Cadre
shall not be allowed under the RACP Scheme even
if the former post is only the feeder post of that
promotional post‖ since the RACP Scheme is
confined to a Cadre only. The petitioner joined as
Junior Grade Typist in the Office of the Odisha
Administrative Tribunal on 04.10.1990 and
completed more than twenty years of service as on
01.01.2013, i.e., the date of implementation of
RACP Scheme. However, the Office Order dated
06.03.2014 issued earlier by Office of the Odisha
Administrative Tribunal for grant of financial
benefit, i.e., awarding Grade Pay of Rs.4,200/-
along with Pay Band Rs.9,300/- — Rs.34,800
meant for Senior Assistant post of Odisha
Administrative Tribunal on the 2nd RACP is not
correct. Thus it is humbly submitted that the
petitioner was not entitled for the Grade Pay of
Rs.4,200/- in Pay Band-II Rs.9,300/- —
Rs.34,800/- of the post of Senior Assistant on the
2nd RACP following the clarification made at point
number 12 of Finance Department Letter
No.1738/F., dated 20.01.2014.‖
Rejoinder affidavit of the petitioner:
W.P.(C) No.28862 of 2023 Page 12 of 141
4. Refuting the above contentions, the petitioner in his
rejoinder affidavit stated that the stance taken by the
opposite parties has no merit in view of principles laid
down in State of Odisha Vrs. Bihari Lal, 2016 SCC
OnLine Ori 333 which was rendered by Division Bench
taking cognizance of all such relevant the Resolutions
with reference to the ORSP Rules, 2008. While
asserting that Order dated 30.05.2023 (Annexure-7)
issued as a sequel to acceptance of recommendation of
the Screening Committee cannot withstand scrutiny in
law, the Letter dated 21.08.2023 seeking to recover
excess drawal in salary from the petitioner would be in
violation of ruling of the Hon‟ble Supreme Court of
India in the case of State of Punjab Vrs. Rafiq Masih,
(2015) 4 SCC 334.
Hearing:
5. Since pleadings are completed and exchanged between
the counsel for the respective parties, on consent this
matter (second round of litigation) is taken up for final
disposal at the stage of admission.
5.1. Heard Sri Sameer Kumar Das, learned Advocate for
the petitioner and Sri Arnav Behera, learned
Additional Standing Counsel for the opposite parties.
W.P.(C) No.28862 of 2023 Page 13 of 141
5.2. Hearing being concluded, the matter was reserved for
preparation and pronouncement of judgment.
Rival contentions and submissions:
6. Sri Sameer Kumar Das, learned Advocate appearing
for the petitioner submitted that evasive reply of the
opposite parties in the counter affidavit cannot have
any aid to sustain the impugned Order at Annexure-7
and the Letter at Annexure-8. It is submitted that in
the garb of counter affidavit, the opposite parties could
not improve upon what is not available in the
Screening Committee Proceeding dated 28.02.2023
which was stated to have conducted to comply with
the direction contained in the Judgment dated
13.01.2023 of this Court in W.P.(C) No.12359 of 2022.
Further reasons by way of counter affidavit cannot be
supplemented to fortify the Order dated 30.05.2023
(Annexure-7).
6.1. Having not answered as to why the decision rendered
by this Court in State of Odisha Vrs. Bihari Lal, 2016
SCC OnLine Ori 333 is not applicable to the present
case, the opposite parties could not countenance the
decision taken in the Meeting held on 28.02.2023 by
the Screening Committee (Annexure-Q/2 enclosed to
the counter affidavit), which is stated to have been
W.P.(C) No.28862 of 2023 Page 14 of 141
followed in the making of Order dated 30.05.2023
(Annexure-7).
6.2. It is further submitted by the counsel for the petitioner
that in view of State of Punjab Vrs. Rafiq Masih, (2015)
4 SCC 334, which is a case relating to recovery of
excess payment of salary made to the employees
belonging to Group-C and Group-D, the Letter dated
21.08.2023 seeking to recover excess drawal in salary
has no sanctity, and the action suggested in the said
letter vide Annexure-8 is outcome of non-application of
mind and tainted by non-consideration of show-cause
reply/explanation submitted by the petitioner in
proper perspective.
7. Sri Arnav Behera, learned Additional Standing
Counsel appearing for the opposite parties placed
heavy reliance on the counter affidavit and submitted
that following undertaking as contained in the Fifth
Schedule specified under Rule 17 of the Odisha
Revised Scales of Pay Rules, 2008 has been given by
the petitioner:
―I hereby undertake that any excess payment that may
be found to have been made as a result of incorrect
fixation of pay or any excess payment detected in the
light of discrepancies noticed subsequently will be
refunded by me to the Government either by adjustment
against future payments due to me or otherwise.‖
W.P.(C) No.28862 of 2023 Page 15 of 141
It is vehemently contended that the petitioner cannot
hide behind the shield of Rafiq Masih (supra).
Buttressing his argument, he relied on High Court of
Punjab and Haryana Vrs. Jagdev Singh, (2016) 6 SCR
781 and contended that as the mistake in fixation of
pay could come to fore at a later stage, in view of
undertaking given by the petitioner, he is requested to
make refund of excess amount already drawn.
7.1. Expanding his argument further, Sri Arnav Behera,
learned Additional Standing Counsel submitted that
the decision of Bihari Lal (supra) is not applicable
inasmuch as the post of Senior Grade Typist is not the
feeder grade for promotion to Senior Assistant. He
further submitted that the feeder grade for promotion
to the Senior Assistant is Junior Assistant and only
10% of the posts of Senior Assistant Cadre of the
Odisha Administrative Tribunal could be filled up from
not only the eligible Senior Grade Typist, but also
Senior Grade Diarist and Senior Grade Recorder.
Therefore, he strenuous urged that the claim of the
petitioner to get his pay to be fixed at Level-10 instead
of Level-8 under the 3rd Modified Assured Career
Progression Scheme under Rule 13 of the Odisha
Revised Scales of Pay Rules, 2017 is having no
foundation and accordingly insisted for sustaining the
Office Order dated 30.05.2023 (Annexure-7) refusing
W.P.(C) No.28862 of 2023 Page 16 of 141
the accede to the claim of the petitioner by the Nodal
Officer of the Odisha Administrative Tribunal and
Letter dated 21.08.2023 (Annexure-8) seeking to
recover/refund of excess payment made to the
petitioner.
7.2. Accordingly, Sri Arnav Behera, learned Additional
Standing Counsel made fervent prayer for dismissal of
the writ petition.
Analysis and discussions:
8. It needs emphasis that the Screening Committee in its
Proceeding vide Meeting held on 28.02.2023
(Annexure-Q/2 series) has recorded that the petitioner
has joined as Senior Grade Typist on 01.02.2019.
There is no dispute that the petitioner having joined as
Junior Grade Typist on 04.10.1990 has completed 20
years of service on 03.10.2010. Therefore, eligibility to
avail benefit of RACPS under the ORSP Rules, 2008
was in vogue on 03.10.2010. In the Proceeding dated
28.02.2023 (which was held to comply the direction
contained in Judgment dated 13.01.2023 rendered in
W.P.(C) No.12359 of 2022) the Screening Committee
recommended not only to revise the pay with effect
from 01.01.2013 but also allow the petitioner to
exercise option for grant of 3rd MACP with effect from
04.10.2020 (completion of 30 years of service).
W.P.(C) No.28862 of 2023 Page 17 of 141
9. With the background factual position as narrated in
the foregoing paragraphs, this Court is called upon to
examine whether the Screening Committee has acted
within the ambit of order of remit directed in the
Judgment dated 13.01.2023 of this Court in the
earlier round of litigation being W.P.(C) No.12359 of
2022.
9.1. To appreciate, it is felt expedient to extract herein
below portion of the impugned Office Order dated
30.05.2023 (Annexure-7) so far as is relevant for the
present purpose:
―Odisha Administrative Tribunal
Bhubaneswar
***
Office OrderNo.E(ii)24/2023/688/OAT., Bhubaneswar
Dated, the 30.05.2023Sub: Disposal of representation dated 20.02.2023 of Sri
Ratnakar Sahoo, Senior Grade Typist and Sri
Biren Kumar Biswal, Senior Grade Typist of
Odisha Administrative Tribunal in response to the
Order dated 13.01.2023 of Hon’ble High Court of
Orissa passed in W.P.(C) No.12358/2022 and
W.P.(C) No.12359/2022 respectively.
Whereas, Hon’ble High Court of Orissa passed Order
dated 13.01.2023 in W.P.(C) No.12358/2022 and
W.P.(C) No.12359/2022 filed by Ratnakar Sahoo,W.P.(C) No.28862 of 2023 Page 18 of 141
Senior Grade Typist and Biren Kumar Biswal, Senior
Grade Typist respectively in the following manner:
‗30. Having heard the rival contentions raised by the
learned counsels for the respective parties and
upon a careful consideration of the factual
background of the cases and upon a conspectus of
the materials placed before this Court by the
respective parties, this Court is of the considered
view that the Order under Annexure-5 has
affected both the Petitioners adversely as their pay
scale was revised and downgraded that too
without giving them an opportunity to show cause.
Therefore, this Court has no hesitation in holding
that the orders dated 16.11.2021 under Annexure-
5 in both the writ petitions are unsustainable in
law and needs to be set aside. Accordingly, the
order dated 16.11.2021 under Annexure-5 in both
the writ applications, which are identical, are
hereby quashed. Further, the matter is remanded
to the Nodal Officer, Odisha Administrative
Tribunal, Bhubaneswar, who shall place the
matter before the Screening Committee and the
Screening Committee is directed to take a fresh
decision after providing an opportunity to show
cause to the Petitioners and further a final decision
shall be taken in the matter by passing a speaking
and reasoned order by taking into consideration
all grounds raised by the Petitioners in their reply
to the proposed show cause notice. The Opposite
Parties are further directed to take a decision in
the matter within a period of two months from the
date of production of certified copy of this order.
W.P.(C) No.28862 of 2023 Page 19 of 141
Further, the Opposite Parties are also directed to
act on the production of certified copy of this order.
31. With the aforesaid observations and directions,
both the writ petitions are allowed partly.
However, there shall be no order as to cost.’
Whereas, Hon’ble High Court has indicated in the above
order that the Order dated 16.11.2021 (Annexure-5 to
the writ petition) passed by the Odisha Administrative
Tribunal are hereby quashed. Further, Hon’ble Court
directed the Nodal Officer, Odisha Administrative
Tribunal, Bhubaneswar to place the matter before the
Screening Committee to take a fresh decision after
providing an opportunity to show-cause to the
petitioners and further a final decision be taken in the
matter by passing a speaking and reasoned order by
taking into consideration of all grounds raised by the
petitioners in their reply to the proposed show-cause
notice.
And whereas, taking into consideration of the orders of
the Hon’ble High Court and on the request of the Nodal
Officer of Odisha Administrative Tribunal vide Letter
No.119, dated 02.02.2023 and No.120, dated
02.02.2023, the General Administration & Public
Grievance Department formed a Screening Committee
vide their Office Order No.3841/Gen., dated
14.02.2023. Show cause notices were served upon the
two petitioners to file their reply. Accordingly, they have
submitted show-cause dated 20.02.2023 stating there
in their own stand on the Order dated l6.11.2021
(Annexure-5 to the Writ Petitions).
W.P.(C) No.28862 of 2023 Page 20 of 141
And whereas, the following Rules/Notifications/
Resolutions which were in vogue at the time of grant of
2nd RACP are meticulously examined as it is revealed
from the proceedings dated 28.02.2023 in favour of the
present petitioners.
1. Resolution of Finance Department vide
No.3560/F., dated 06.02.2013.
2. Resolution of the General Administration & Public
Grievance Department vide No. 3894/Gen., dated
09.02.2018.
3. Odisha Administrative Tribunal (Recruitment and
Conditions of Service of Officers and Staff) Rules,
1999.
And whereas, the Screening Committee in its meeting
dated 28.02.2023, have decided to fix the pay as per
Annexure-‗A’ & ‗B’ attached to the proceedings of the
Screening Committee dated 28.02.2023.
And whereas, the proceedings of the Screening
Committee Meeting held on 28.02.2023 has been
approved by the General Administration & Public
Grievance Department and communicated vide Letter
No. 14938/Gen., dated 22.05.2023.
Now therefore, upon approval of the recommendations
of the Screening Committee dated 28.02.2023, the pay
fixation in favour of Sri Ratnakar Sahoo, Senior Grade
Typist and Sri Biren Kumar Biswal, Senior Grade Typist
of Odisha Administrative Tribunal are hereby approved
as per Annexure-‗A’ & ‗B’ enclosed herewith as per
Orders dated 13.01.2023 of the Hon’ble High Court of
W.P.(C) No.28862 of 2023 Page 21 of 141
Orissa the W.P.(C) No. 12358/2022 and W.P.(C) No.
12359/2022 respectively.
The above order is come into force with immediate
effect.
Sd/- 30.05.2023
Nodal Officer‖
9.2. As it appears the Nodal Officer vide Notice dated
16.02.2023 (Annexure-P/2 to the counter affidavit)
invited show cause reply; responding to which the
petitioner explained by reply dated 20.02.2023 as
follows:
―***
In obedience to that order your good office has issued
notice dated 16.02.2023 under reference:
1. That the moot issue involved in the cases as to
whether there was any illegality or irregularity in
the earlier order dated 06.03.2014 of the Odisha
Administrative Tribunal, Bhubaneswar passed by
its Registrar allowing the benefits of 2nd Revised
Assured Career Progression in the appropriate
scale and grade. The Honourable Court on
consideration all the aspects was pleased to find
the Order dated 16.11.2021 to be irrational and
illegal and accordingly set aside the same.
Therefore, I enclosed here with the copy of my writ
petition and its annexures for ready reference with
a request to treat it as a part of my objection/
reply to your notice dated 16.02.2023.
W.P.(C) No.28862 of 2023 Page 22 of 141
2. That since the honourable Court has taken note of
each of the issues involved in the case more
specifically the judgement of the honourable High
Court of Orissa confirmed in the honourable
Supreme Court of India, i.e., in the case of State of
Odisha and another Vrs. Bihari Lal Barik and
others, W.P.(C) No.2831 of 2016 disposed of on
27.06.2016. The Honourable Court has taken note
of the judgement of the honourable Supreme Court
with regard to recovery from the employee of any
payment made pursuant to a Government Order
by reference to the judgement of the honourable
Court in the case of State of Punjab and another
Vrs. Rafiq Masih, (White Washer) and others
reported in (2015) 4 SCC 334. From the aforesaid
at two judgments the issue involved in this case
have already been decided in my favour and
therefore no further adjudication is required at
your level. But since the honourable Court has
directed to Screening Committee to do the needful
in the matter and to pass a speaking order in
order to assist the Screening Committee to come to
a just conclusion decision in the matter by
allowing me the benefit of 2nd Revised Assured
Career Progression as allowed in the previous
Order of the honourable Odissa Administrative
Tribunal, Bhubaneswar, I strongly rely upon the
judgments in the case of Bihar Lal Barik (supra).
I have gone through the counter affidavit filed on
behalf of the Nodal Officer and the State
Government in the High Court and has also filed a
rejoinder. The ground taken in the entire counter
affidavit got answered in paragraph 16 of the
W.P.(C) No.28862 of 2023 Page 23 of 141
judgement in the case of Bihari Lal (supra) and
therefore no further adjudication is required in the
matter. For better appreciation of the case
paragraph 16 of the judgement in the case of
Bihari Lal Barik (supra) is quoted hereunder for
ready reference of the honourable Screening
Committee, though I have attached the entire
judgement along with this petition. ***
3. That for the aforesaid reasons at the cost of
reputation it is humbly submitted that the
petitioner entered into Government service on
04.10.1990 as a Junior Grade Typist and joined in
Odisha Administrative Tribunal which is a Heads
of Department and the service condition is
governed under the provisions of the Odisha
Administrative Tribunal (Recruitment and
Conditions of Service of Officers and Staff) Rules,
1999. As per Rule 7 read with Schedule-I thereof
clearly provides that the post of Junior Grade
Typist and Senior Grade Typist. Unlike other
Departments of the State Government there is no
such promotional post like Head Typist and
Superintendent in the hierarchy of promotion of
the Junior Grade Typist and Senior Grade Typist
in the Odisha Administrative Tribunal. Therefore,
there is a promotional avenue available in the
Recruitment Rules, 1999 for these Senior Grade
Typist to that of Senior Assistant under the Odisha
Administrative Tribunal. The law has been well-
settled in the case of State of Odisha and another
Vrs. Bihari Lal Barik and others, W.P.(C) No.2831
of 2016 disposed of on 27.06.12016 that an
employee while given the benefit of the Revised
W.P.(C) No.28862 of 2023 Page 24 of 141
Assured Career Progression he is entitled to the
Pay Band attached to the next post in his
promotional avenue not in any other Grade Pay
come in between. Therefore the petitioner who
became entitled to the 2nd Revised Assured Career
Progression on completion of 20 years of service
with effect from 04.10.2010 was rightly allowed
the benefit of the 2nd Revised Assured Career
Progression by the same Tribunal under
Annexure-4 of the writ petition by allowing the
benefit of the Grade Pay of Rs.4,200/- in the scale
of pay of Rs.9,300/- — Rs.34,800/- with the
actual financial benefit from 01.01.2013 as per
Finance Department Resolution No.3560/F., dated
06.02.2013 as it is the scale of pay of the post of
Senior Assistant. Hence, there is no illegality or
irregularity in such fixation of the pay of the
petitioner on completion of 20 years of service in
the 2nd Revised Assured Career Progression under
Annexure-4 of the writ petition.
4. That it is not out of place to mention here that to
justify the stand taken by me that the next
promotional post of Senior Grade Typist is the
Senior Assistant which carries the scale of pay of
Rs.9,300/- — Rs.34,800/- with Grade Pay of
Rs.4,200. I have obtained copy of one such
promotion order of another Senior Grade Typist of
the same Tribunal. Sri Nilakanth Das vide Memo
No.2194, dated 20.03.2017 which was also
annexed in the honourable court which justify the
fact that a next promotional avenue of the Senior
Typist is to the post of Senior Assistant as Sri
Nilakanth Das was rightly extended the benefit of
W.P.(C) No.28862 of 2023 Page 25 of 141
Grade Pay of Rs.4,200/- while fixing his pay in
the 2nd Revised Assured Career Progression. The
other persons who have got such promotion as
that of Sri Nilakantha Das are Sri Bira Kishore
Singh, Sri Pramod Kumar Panda and Sri
Lachhman Tudu of the same Tribunal. Therefore, I
am entitled to similar treatment in shape of
Revised Assured Career Progression without
discrimination.
In the aforesaid premises, I humbly pray before the
honourable Screening Committee to take a pragmatic
approach in my favour by taking note of the judgements
I rely upon, so also the judgments of the honourable
Court more specifically by taking note of the fact that I
am going to retire from service on attaining the age of
superannuation on 31.05.2023. I hope and trust your
honour will pass a judicious order by allowing me to
draw the benefits of Revised Assured Career
Progression as per the earlier order of the Odisha
Administrative Tribunal in the 2nd Revised Assured
Career Progression and also direct the Nodal Officer to
re-fix my pay under 3rd Revised Assured Career
Progression as per my entitlement in the Grade Pay of
Rs.4,600/- and oblige.‖
9.3. The impugned Order dated 30.05.2023 acceded to the
recommendations of the Screening Committee in its
Meeting held on 28.02.2023 reveals that:
―Pursuant to the Order dated 13.01.2023 of Hon’ble
High Court of Orissa passed in W.P.(C) No.12358/2022
and W.P.(C) No.12359/2022 filed by Sri Ratnakar
Sahoo, Senior Grade Typist and Sri Biren KumarW.P.(C) No.28862 of 2023 Page 26 of 141
Biswal, Senior Grade Typist respectively and in
pursuance to the Order No.3041/Gcn., dated
14.02.2023 of General Administration and Public
Grievance Department and Letter No. 230/OAT, dated
24.02.2023, the following members of the Screening
Committee were present on dated 28.02.2023 to lake
decision relating to financial upgradation under
RACP/MACP in favour of Sri Ratnakar Sahoo and Sri
Biren Kumar Biswal. Senior Grade Typists of O.A.T.
Members Present:
i. Smt Sagarika Hota. Chairperson
FA-cum-Additional Secretary
General Administration and
Public Grievance Departmentii. Sri Debabrata Mallick Member Convenor
Nodal Officer,
Odisha Administrative Tribunaliii. Sri Chitta Ranjan Panda Member
Under Secretary to Government
(FE), General Administration and
Public Grievance DepartmentThe operating portion of Order dated 13.01.2023 is
furnished as under based upon which the follow up
action in the matter is decided:
30. ***
31. ***
As per the Order dated 13.01.2023 of thc Hon’ble
Court, show cause notices were .served upon the two
petitioners to submit their grievances vide LetterW.P.(C) No.28862 of 2023 Page 27 of 141
No.177, dated 16.02.2023 and No.170, dated
16.02.2023 of Odisha Administrative Tribunal.
Accordingly, two petitioners have submitted their reply
to show cause pointing out the detailed facts as raised
by them in the two Writ Petitions.
Pursuant to the Order of Hon’ble High Court of Orissa,
sufficient opportunity of being heard was extended to
both Sri Ratnakar Sahoo, Senior Grade Typist and Sri
Biran Kumar Biswal, Senior grade Typist. But both Sri
Sahoo and Sri Biswal could not substantiate with
reasons or pointed out anomaly in the Order dated
16.11.2021 of the Nodal Officer, Odissa Administrative
Tribunal beyond the ground already resorted to in the
W.P.(C) No.12358 of 2022 and W.P.(C) No.12359 of
2022 filed by the petitioners respectively.
In view of the above discussion, the Screening
Committee recommends to revise the pay with effect
from 01.01.2013 and allow to exercise option to grant
3rd Modified Assured Career Progression with effect
from 04.10.2020. The detailed calculation of revised
pay with effect from 01.01.2013 till the date of
superannuation annexed at Annexure-A and B
respectively in favour of Sri Ratnakar Sahoo, Senior
Grade Typist and Sri Biran Kumar Biswal, Senior
Grade Typist.
The meeting ended with vote of thanks to the
chairperson and members.‖
9.4. Cumulative reading of aforesaid material would
indicate that neither the Screening Committee nor did
the Nodal Officer considered the grievance of the
W.P.(C) No.28862 of 2023 Page 28 of 141
petitioner in proper perspective. From the reply dated
20.02.2023 it is unambiguous that the petitioner has
confined its claim with respect to 2nd RACPS under the
ORSP Rules, 2008 which has been availed and
objection as to recovery of alleged excess payment.
There seems no issue with respect to 3rd MACP under
the Odisha Revised Scales of Pay Rules, 2017. None of
the contentions/averments/grounds as made available
to the Screening Committee by the petitioner by way of
reply has been addressed to.
9.5. This Court while directing the Nodal Officer to place
the matter before the Screening Committee which in
turn was required to consider the show cause reply of
the petitioner in compliance of principles of natural
justice vide Judgment dated 13.01.2023 rendered in
W.P.(C) No.12359 of 2022, observed as follows:
―7. Mr. S.K. Das, learned counsel appearing for the
Petitioner submitted that the impugned order
dated 16.11.2021 under Annexure-5 is erroneous
and illegal and the same is against the Rules of
1999 under Annexure-3 to the writ petition. He
further contended that the Petitioner was rightly
allowed the 2nd RACP with Grade Pay of
Rs.4200/- under the Finance Department
Resolution 2013. The conduct of the Nodal Officer
in reverting the Petitioner to a lower scale of pay
all of a sudden without providing any opportunity
to show cause is per se illegal, according to Mr.
W.P.(C) No.28862 of 2023 Page 29 of 141
Das. Further, the recovery sought to be made is in
clear violation of the law laid down by the Hon’ble
Supreme Court in the case of State of Punjab and
others Vrs. Rafiq Masih (White Washer) and
others, reported in (2015) 4 SCC 334. Referring to
the aforesaid judgment, Mr. Das further submits
that the benefit already accrued in favour of the
Petitioner in terms of the rules should not have
been taken away abruptly and consequential
order for recovery should not have been passed
after 7 years. It is further contended that such
conduct of the authorities has seriously
jeopardized the life and livelihood of the Petitioner
and eventually the service conditions have been
altered.
8. It is further contended by the learned counsel for
the Petitioner that on the basis of the Finance
Department Resolution of the Year 2013, the
Petitioner is eligible for 3rd RACP benefits w.e.f.
04.10.2020 in the next higher Grade Pay of
Rs.4,600/-. But most unfortunately, the Opposite
Party No.2 has directed the Petitioner to give his
option to come down to Level-8 of the pay matrix
under ORSP Rules, 2017, although the same is not
his actual entitlement. On the contrary, the
Petitioner is entitled to the Grade Pay of the P.B.-2
in Level-10 of the Pay Matrix. Although the
Petitioner approached the Nodal Officer with
request to reconsider his decision, the Nodal
Officer verbally informed that the decision of the
Screening Committee cannot be changed. In the
said context, Mr. Das further submitted that there
exists no statutory Screening Committee in theW.P.(C) No.28862 of 2023 Page 30 of 141
Administrative Tribunal Rules, 1999 as of now. He
further contended that the recovery sought to be
made pursuant to the decision of such Screening
Committee is completely in violation of the law laid
down by the Hon’ble Supreme Court in Rafiq
Masih’s case (supra). Accordingly, it was prayed
that the order under Annexure-5 be quashed.
9. A counter affidavit has been filed on behalf of the
Opposite Parties wherein it has been pleaded that
the Petitioner entered into the Government service
as Junior Grade Typist on 04.10.1990 in the time
scale of pay of Rs.950-20-1150-EB-25-1500 under
the ORSP Rules, 1989 (equivalent to 6th Pay GP of
Rs.1900/- or 7th Pay at Level-4). Thereafter, the
Petitioner was promoted to the rank of Senior
Grade Typist only on 16.02.2015. After completion
of 15 years of continuous service in the post of
Junior Grade Typist in the absence of promotion,
he was granted financial upgradation benefit in
the shape of TBA in the scale of pay of Rs.3200-
85-4900/- under the ORSP Rules, 1998 w.e.f.
04.10.2005 (equivalent of GP of Rs.2000/- as per
the ORSP Rules, 2008 under 6th Pay and Level-5
as per the ORSP Rules, 2017 under 7th Pay).
Further, referring to the Finance Department
Resolution dated 06.02.213, it has been stated
that RACP was made applicable w.e.f. 01.01.2013
on completion of 10, 20 and 30 years of service in
a single cadre in absence of promotion. It has also
been stated in the counter affidavit that after
completion of 20 years of service in the post of
Junior Grade Typist as on 03.10.2010 the
Screening Committee in its proceeding dated
W.P.(C) No.28862 of 2023 Page 31 of 141
08.05.2014 found that the Petitioner is eligible for
grant of the 1st RACP with benefit of Grade Pay
corresponding to Senior Grade Typist and 2nd
RACP w.e.f. 01.01.2013.
10. Pursuant to the aforesaid decision of the Screening
Committee on 08.05.2014 under Annexure-C/2, 6
(six) numbers of Group-C employees of the OAT
who were found eligible to get financial
upgradation benefits under the RACP Scheme
wherein the Petitioner’s name finds place at Sl.
No.4. However, it has also been stated that the
pay of the Petitioner was erroneously fixed vide
Office Order dated 31.05.2014. Further, in the
counter affidavit, it has been narrated in detail as
to how the pay has been fixed erroneously. Upon
a careful examination of the analysis made
in the counter affidavit, this Court is of the
considered view that for such erroneous
calculation, the blame cannot be put on the
Petitioner.‖
9.6. This Court while rendering the aforesaid judgment,
has taken into consideration the decision in Bihari Lal
(supra) and Rafiq Masih (supra). Neither the Screening
Committee nor has the Nodal Officer considered the
effect and impact of the aforesaid judgments on the
instant fact-situation of the case. Therefore, the Office
Order dated 30.05.2023 of the Odisha Administrative
Tribunal following the recommendations of the
Screening Committee is quite illogical, irrational and
bereft of reason.
W.P.(C) No.28862 of 2023 Page 32 of 141
9.7. It is manifest from the Order dated 30.05.2023
(Annexure-7) read with reasons ascribed to in the
Proceeding of the Screening Committee in the Meeting
held on 28.02.2023 (Annexure-Q/2 of the counter
affidavit) purported to have considered the reply to
show cause issued pursuant to the direction of this
Court vide Judgment dated 13.01.2023 that such
show cause reply has not been considered seemly.
9.8. It is apt to understand the purport and object of
“consider”. In Ram Chander Vrs. Union of India, AIR
1986 SC 1173, it was held that the word „consider‟
occurring in the Rule must mean the Authority shall
duly apply its mind and give reasons for its decision.
The duty to give reason is an incident of the judicial
process and emphasized that in discharging quasi
judicial functions the Authority must act in
accordance with the principles of natural justice and
give reasons for its decision.
9.9. “Consideration” does not mean incidental or collateral
examination of a matter by the Authority in the
process of assessment/adjudication/determination.
There must be something in the order to show that the
Authority applied his mind to the particular subject-
matter or the particular source of information with a
view to arriving at its conclusion. See, Additional
W.P.(C) No.28862 of 2023 Page 33 of 141
Commissioner of Income Tax Vrs. Gurjargravures Pvt.
Ltd., AIR 1978 SC 40.
9.10. The word „consider‟ is of great significance. Its
dictionary meaning of the same is, „to think over‟, „to
regard as‟, or „deem to be‟. Hence, there is a clear
connotation to the effect that there must be active
application of mind. In other words, the term „consider‟
postulates consideration of all relevant aspects of a
matter. Thus, formation of opinion by the statutory
Authority should reflect intense application of mind
with reference to the material on record. The order of
the Authority should reveal such application of mind.
The Authority cannot simply adopt the language
employed in the document before it and proceed to
affirm the same. [Vide, Chairman, LIC of India Vrs. A.
Masilamani, (2013) 6 SCC 530; Nilamani Jal Vrs.
Collector, 2016 (II) OLR 190 (Ori)].
9.11. The Hon‟ble Supreme Court of India for failure of the
Appellate Authority to ascribe reasons in the matter of
Steel Authority of India Limited Vrs. Sales Tax Officer,
(2008) 10 SCR 655 = 2008 INSC 799 made the
following observation:
―12. A bare reading of the order shows complete non-
application of mind. As rightly pointed out by
learned counsel for the appellant, this is not theW.P.(C) No.28862 of 2023 Page 34 of 141
way a statutory appeal is to be disposed of.
Various important questions of law were raised.
Unfortunately, even they were not dealt by the
first appellate authority.
13. Reason is the heartbeat of every conclusion. It
introduces clarity in an order and without the
same it becomes lifeless. [See Raj Kishore Jha Vrs.
State of Bihar, (2003) 11 SCC 519].
14. Even in respect of administrative orders Lord
Denning, M.R. in Breen Vrs. Amalgamated Engg.
Union, (1971) 1 All ER 1148, observed:
‗The giving of reasons is one of the fundamentals
of good administration.’In Alexander Machinery (Dudley) Ltd. Vrs.
Crabtree 1974 ICR 120 (NIRC) it was observed:
―Failure to give reasons amounts to denial of
justice.‖ ―Reasons are live links between the mind
of the decision-taker to the controversy in question
and the decision or conclusion arrived at.‖
Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the
decision reveals the ―inscrutable face of the
sphinx‖, it can, by its silence, render it virtually
impossible for the courts to perform their appellate
function or exercise the power of judicial review in
adjudging the validity of the decision. Right to
reason is an indispensable part of a sound judicial
system; reasons at least sufficient to indicate an
application of mind to the matter before court.
Another rationale is that the affected party can
know why the decision has gone against him. One
W.P.(C) No.28862 of 2023 Page 35 of 141
of the salutary requirements of natural justice is
spelling out reasons for the order made; in other
words, a speaking-out. The ―inscrutable face of
the sphinx‖ is ordinarily incongruous with a
judicial or quasi judicial performance.‖9.12. Where the fact finding authority has acted without any
evidence or upon a view of the facts which could not
reasonably be entertained or the facts found were
such that no person acting judicially and properly
instructed as to the relevant law could have found, the
Court is entitled to interfere. See, Lalchand Bhagat
Ambica Ram Vrs. CIT, (1959) 37 ITR 288 (SC).
9.13. With reference to Omar Salay Mohamed Sait Vrs. CIT,
(1959) 37 ITR 151 (SC) the Hon‟ble Andhra Pradesh
High Court in Spectra Shares & Scrips Pvt. Ltd. Vrs.
CIT, (2013) 354 ITR 35 (AP), has been pleased to make
the observation that Income-tax Appellate Tribunal is
a fact finding Tribunal and if it arrives at its own
conclusions of fact after due consideration of the
evidence before it, the Court will not interfere. It is
necessary, however, that every fact for and against the
assessee must have been considered with due care
and the Tribunal must have given its finding in a
manner which would clearly indicate what were the
questions which arose for determination, what was the
evidence pro and contra in regard to each one of them
W.P.(C) No.28862 of 2023 Page 36 of 141
and what were the findings reached on the evidence on
record before it. The conclusions reached by the
Tribunal should not be coloured by any irrelevant
considerations or matters of prejudice and if there are
any circumstances which required to be explained by
the assessee, the assessee should be given an
opportunity of doing so. On no account whatever
should the Tribunal base its findings on suspicions,
conjectures or surmises nor should it act on no
evidence at all or on improper rejection of material and
relevant evidence or partly on evidence and partly on
suspicions, conjectures or surmises and if it does
anything of the sort, its findings, even though on
questions of fact, will be liable to be set aside by the
Court.
9.14. “Reason”, being heartbeat of every decision making
process, it has been restated in Nareshbhai Bhagubhai
Vrs. Union of India, (2019) 15 SCC 1 as follows:
―In Kranti Associates (P) Ltd. Vrs. Masood Ahmed Khan,
(2010) 9 SCC 496 this Court held that:
‗12. The necessity of giving reason by a body or
authority in support of its decision came up for
consideration before this Court in several cases.
Initially this Court recognised a sort of
demarcation between administrative orders and
quasi judicial orders but with the passage of timeW.P.(C) No.28862 of 2023 Page 37 of 141
the distinction between the two got blurred and
thinned out and virtually reached a vanishing
point in the judgment of this Court in A.K. Kraipak
Vrs. Union of India, (1969) 2 SCC 262.
***
47. Summarising the above discussion, this Court
holds:
(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if
such decisions affect anyone prejudicially.
(b) A quasi judicial authority must record reasons in
support of its conclusions.
(c) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice
must not only be done it must also appear to be
done as well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant
grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as indispensable a
component of a decision-making process as
observing principles of natural justice by judicial,
quasi judicial and even by administrative bodies.
W.P.(C) No.28862 of 2023 Page 38 of 141
(g) Reasons facilitate the process of judicial review by
superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions
based on relevant facts. This is virtually the
lifeblood of judicial decision-making justifying the
principle that reason is the soul of justice.
(i) Judicial or even quasi judicial opinions these days
can be as different as the Judges and authorities
who deliver them. All these decisions serve one
common purpose which is to demonstrate by
reason that the relevant factors have been
objectively considered. This is important for
sustaining the litigants’ faith in the justice delivery
system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a Judge or a quasi judicial authority is not
candid enough about his/her decision-making
process then it is impossible to know whether the
person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or
―rubber-stamp reasons‖ is not to be equated with
a valid decision-making process.
(m) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes
W.P.(C) No.28862 of 2023 Page 39 of 141
the Judges and decision-makers less prone to
errors but also makes them subject to broader
scrutiny. [See David Shapiro in ―Defence of
Judicial Candor‖, (1987) 100 Harvard Law Review
731-37].
(n) Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision-
making, the said requirement is now virtually a
component of human rights and was considered
part of Strasbourg Jurisprudence. See Ruiz Torija
Vrs. Spain, (1994) 19 EHRR 553 and Anya Vrs.
University of Oxford, 2001 EWCA Civ 405 (CA),
wherein the Court referred to Article 6 of the
European Convention of Human Rights which
requires, ‗adequate and intelligent reasons must
be given for judicial decisions’.
(o) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
giving reasons for the decision is of the essence
and is virtually a part of ―due process‖.‖
9.15. Conceding that giving reasons facilitates the detection
of errors of law, this Court in Santosh Kumar Paikray
Vrs. State of Odisha, 2016 (II) OLR 1131 (Ori) discussed
importance of assignment of reason in the following
lines:
―8. The meaning of the expression ‗reason’ as stated
by Franz Schubert:
‗reason is nothing but analysis of belief.’
W.P.(C) No.28862 of 2023 Page 40 of 141
In Black’s Law Dictionary, 5th Edition, ‗reason’
has been defined as:
‗a faculty of the mind by which it distinguishes
truth from falsehood, good from evil, and which
enables the possessor to deduce inferences from
facts and from propositions.’In other words, reason means the faculty of
rational thought rather than some abstract
relationship between propositions and by this
faculty, it is meant the capacity to make correct
inferences from propositions, to size up facts for
what they are and what they imply, and to
identify the best means to some end, and, in
general, to distinguish what we should believe
from what we merely do believe. The importance of
giving reason, it reveals a rational nexus between
facts considered and conclusions reached.
9. In Union of India Vrs. Madal Lal Capoor, AIR 1974
SC 87 and Uma Charan Vrs. State of MP, AIR
1981 SC 1915, the Apex Court held reasons are
the links between the materials on which certain
conclusions are based and the actual conclusions.
They disclose how the mind is applied to the
subject-matter for a decision whether it is purely
administrative or quasi judicial and reveal a
rational nexus between the facts considered and
conclusions reached. The reasons assure an
inbuilt support to the conclusion and decision
reached. The fair play requires recording of
germane and relevant precise reasons when an
order affects the right of a citizen or a person
irrespective of the fact whether it is judicial, quasi
W.P.(C) No.28862 of 2023 Page 41 of 141
judicial or administrative. The recording of reasons
is also an assurance that the authority concerned
applied its mind to the facts on record and it is
vital for the purpose of showing a person that he is
receiving justice.‖
9.16. It is stated in State Bank of India Vrs. Ajay Kumar
Sood, 2022 SCC OnLine SC 1067 that individual
judges can indeed have different ways of writing
judgments and continue to have variations in their
styles of expression. The expression of a judge is an
unfolding of the recesses of the mind. However, while
recesses of the mind may be inscrutable, the
reasoning in judgment cannot be. While judges may
have their own style of judgment writing, they must
ensure lucidity in writing across these styles.
9.17. In Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd.,
2017 (II) ILR-CUT 1035, this Court has held as follows:
―9. It is well settled principle of law laid down by the
Apex Court time and again that the authority
should pass reasoned order. Reasons being a
necessary concomitant to passing an order, the
authority can thus discharge its duty in a
meaningful manner either by furnishing the same
expressly or by necessary reference.
***
11. It is well-settled principle of law laid down by the
Apex Court in Mohinder Singh Gill and anotherW.P.(C) No.28862 of 2023 Page 42 of 141
Vrs. The Chief Election Commissioner, New Delhi
and others, AIR 1978 SC 851 that:
‗When a statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so mentioned
and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise.
Otherwise an order bad in the beginning may by
the time it comes to Court on account of a
challenge, get validated by additional grounds
later brought out.’In Commissioner of Police, Bombay Vrs.
Gordhandas Bhanji, AIR 1952 SC 16, the Apex
Court held as follows:
‗Public orders publicly made, in exercise of a
statutory authority cannot be construed in
the light of explanations subsequently given
by the officer making the order of what he
meant, or of what was in his mind, or what
he intended to do. Public orders made by public
authorities are meant to have public effect and are
intended to affect the acting and conduct of those
to whom they are addressed and must be
construed objectively with reference to the
language used in the order itself. Orders are not
like old wine becoming better as they grow older.’Similar view has also been taken in Bhikhubhai
Vithalbhai Patel and others Vrs. State of Gujarat
and another, (2008) 4 SCC 144 as well as in M/s.
Shree Ganesh Construction Vrs. State of Orissa,
2016 (II) OLR 237 = 2016 (II) ILR-CUT 237.
W.P.(C) No.28862 of 2023 Page 43 of 141
In the case of State of Punjab Vrs. Bandeep Singh,
(2016) 1 SCC 724 the Apex Court held that the
validity of administrative orders/decisions/
executive instructions/orders/circulars must
be judged by reasons stated in decision or
order itself. Subsequent explanations or reasons
cannot be accepted to sustain decision or order.‖9.18. Under the aforesaid premises, the reasons given in the
counter affidavit in order to justify the decision taken
in the decision-making process of the Screening
Committee and the Nodal Officer cannot be
countenanced.
10. Next it is relevant to consider whether the Screening
Committee and the Nodal Officer have considered the
plea of the petitioner in proper perspective as directed
in the Judgment dated 13.01.2023.
10.1. Though the Odisha Administrative Tribunal in its
Office Order dated 30.05.2023 has quoted paragraphs
30 and 31 of the Judgment dated 13.01.2023,
whereby this Court specifically requested the
Screening Committee “to take a fresh decision after
providing an opportunity to show cause to the
petitioners”, glossing through the “Proceedings of the
Screening Committee Meeting held on 28.02.2023”
(Annexure-Q/2 of the counter affidavit) it transpires
that though the petitioner has responded to the noticeW.P.(C) No.28862 of 2023 Page 44 of 141
to show cause, none of the grounds/aspects found
mentioned in the reply dated 20.02.2023 has been
taken care of. The Screening Committee with terse
voice stated “Pursuant to the Order of Hon’ble High
Court of Orissa, sufficient opportunity of being heard
was extended to both Sri Ratnakar Sahoo, Senior Grade
Typist and Sri Biran Kumar Biswal, Senior grade
Typist. But both Sri Sahoo and Sri Biswal could not
substantiate with reasons or pointed out anomaly in the
Order dated 16.11.2021 of the Nodal Officer, Odissa
Administrative Tribunal beyond the ground already
resorted to in the W.P.(C) No.12358 of 2022 and W.P.(C)
No.12359 of 2022 filed by the petitioners respectively.”
10.2. The Screening Committee without discussing the
implication of State of Odisha Vrs. Bihari Lal, 2016
SCC OnLine Ori 333 could not have abruptly jumped to
the conclusion that the reduction of pay scale was just
and proper. While issuing notice vide Letter dated
21.08.2023 (Annexure-8), the Officer-on-Special Duty,
Odisha Administrative Tribunal appears to have fell in
grave error by not examining the applicability of ratio
of judgment of the Hon‟ble Supreme Court of India in
the case of Rafiq Masih, (2015) 4 SCC 334.
10.3. At this juncture it may be pertinent to have regard to
The Agricultural Produce Marketing Committee Vrs. The
W.P.(C) No.28862 of 2023 Page 45 of 141
State of Karnataka, 2022 LiveLaw (SC) 307 wherein
the following observation has been made:
―7. We have heard the learned counsel appearing on
behalf of the respective parties at length.
8. At the outset it is required to be noted that the
proceedings before the learned Single Judge of the
High Court by way of writ petition No. 3884 of
1998 was with respect to 172 acres 22 guntas of
land acquired. In the writ petition No. 3884 of
1998, the original land owners prayed for the
following reliefs: ***8.2 That the learned Single Judge framed the
following common points for consideration: ***Despite the fact that a number of
issues/grounds were raised before the High
Court on the legality and validity of the
acquisition proceedings, the learned Single
Judge decided only one issue, namely,
whether the acquisition proceedings have
lapsed by virtue of the 2013 Act. Whereas a
number of issues/grounds were raised and as
such the original reliefs sought (acquisition
proceedings under Act 1894) were the main reliefs
which were required to be dealt with and
considered, unfortunately, the learned Single
Judge did not give findings on the other
issues/grounds and on the reliefs sought and as
observed hereinabove, disposed of the writ
petitions considering only one relief/ground,
namely, whether the acquisition proceedings have
lapsed by virtue of the 2013 Act. When a number
W.P.(C) No.28862 of 2023 Page 46 of 141
of submissions were made on the other
issues/grounds, we are of the opinion that the
High Court ought to have considered the
other issues and ought to have given the
findings on other issues also. Because of not
deciding the other issues and deciding the
matter only on one issue and thereafter when
the decision on such one issue, is held to be
bad in law for the reasons stated
hereinbelow, this Court has no other
alternative but to remand the matters to the
learned Single Judge for deciding the Writ
Petitions afresh on all other issues.
8.3 By way of analogy we observe that while
considering Order 14 Rule 2 (as amended w.e.f.
01.02.1977), this Court in the case of Nusli Neville
Wadia Vrs. Ivory Properties & Others, (2020) 6
SCC 557, has observed and held that after the
amendment w.e.f. 01.02.1977, though Order 14
Rule 2(2) enables the court to decide the issue of
law as a preliminary issue in case the same
relates to–
(i) jurisdiction of Court or
(ii) a bar to suit created by any law for the time
being in force, a departure has been made in
amended provision whereby now it
mandates the court to pronounce judgment
on all issues notwithstanding that a case
may be disposed of on a preliminary issue.
W.P.(C) No.28862 of 2023 Page 47 of 141
It is further observed that intendment behind this
departure is to avoid remand in an appealable
case for deciding other issues.
8.4 Therefore, the Courts should adjudicate on
all the issues and give its findings on all the
issues and not to pronounce the judgment
only on one of the issues. As such it is the
duty cast upon the Courts to adjudicate on
all the issues and pronounce the judgment on
all the issues rather than adopting a
shortcut approach and pronouncing the
judgment on only one issue. By such a
practice, it would increase the burden on the
appellate Court and in many cases if the
decision on the issue decided is found to be
erroneous and on other issues there is no
adjudication and no findings recorded by the
court, the appellate court will have no option
but to remand the matter for its fresh
decision. Therefore, to avoid such an eventuality,
the courts have to adjudicate on all the issues
raised in a case and render findings and the
judgment on all the issues involved.‖
10.4. Apposite it is to have reference to what has been
imperatively enunciated in CCT Vrs. Shukla & Bros.,
(2010) 4 SCC 785:
―12. In exercise of the power of judicial review, the
concept of reasoned orders/actions has been
enforced equally by the foreign courts as by the
courts in India. The administrative authority and
tribunals are obliged to give reasons, absenceW.P.(C) No.28862 of 2023 Page 48 of 141
whereof could render the order liable to judicial
chastisement. Thus, it will not be far from an
absolute principle of law that the courts should
record reasons for their conclusions to enable the
appellate or higher courts to exercise their
jurisdiction appropriately and in accordance with
law. It is the reasoning alone, that can enable a
higher or an appellate court to appreciate the
controversy in issue in its correct perspective and
to hold whether the reasoning recorded by the
court whose order is impugned, is sustainable in
law and whether it has adopted the correct legal
approach. To subserve the purpose of justice
delivery system, therefore, it is essential that the
courts should record reasons for their conclusions,
whether disposing of the case at admission stage
or after regular hearing.
13. At the cost of repetition, we may notice, that
this Court has consistently taken the view
that recording of reasons is an essential
feature of dispensation of justice. A litigant
who approaches the court with any grievance
in accordance with law is entitled to know
the reasons for grant or rejection of his
prayer. Reasons are the soul of orders. Non-
recording of reasons could lead to dual infirmities;
firstly, it may cause prejudice to the affected party
and secondly, more particularly, hamper the
proper administration of justice. These principles
are not only applicable to administrative or
executive actions, but they apply with equal force
and, in fact, with a greater degree of precision to
judicial pronouncements. A judgment without
W.P.(C) No.28862 of 2023 Page 49 of 141
reasons causes prejudice to the person against
whom it is pronounced, as that litigant is unable to
know the ground which weighed with the court in
rejecting his claim and also causes impediments in
his taking adequate and appropriate grounds
before the higher court in the event of challenge to
that judgment. Now, we may refer to certain
judgments of this Court as well as of the High
Courts which have taken this view.
14. The principle of natural justice has twin
ingredients; firstly, the person who is likely to
be adversely affected by the action of the
authorities should be given notice to show cause
thereof and granted an opportunity of hearing and
secondly, the orders so passed by the authorities
should give reason for arriving at any conclusion
showing proper application of mind. Violation of
either of them could in the given facts and
circumstances of the case, vitiate the order
itself. Such rule being applicable to the
administrative authorities certainly requires that
the judgment of the court should meet with this
requirement with higher degree of satisfaction. The
order of an administrative authority may not
provide reasons like a judgment but the order
must be supported by the reasons of rationality.
The distinction between passing of an order by an
administrative or quasi judicial authority has
practically extinguished and both are required to
pass reasoned orders.
15. In Siemens Engg. and Mfg. Co. of India Ltd. Vrs.
Union of India, (1976) 2 SCC 981 the Supreme
Court held as under:
W.P.(C) No.28862 of 2023 Page 50 of 141
‗6. *** If courts of law are to be replaced by
administrative authorities and tribunals, as
indeed, in some kinds of cases, with the
proliferation of administrative law, they may
have to be so replaced, it is essential that
administrative authorities and tribunals
should accord fair and proper hearing to the
persons sought to be affected by their orders
and give sufficiently clear and explicit
reasons in support of the orders made by
them. Then alone administrative authorities
and tribunals exercising quasi judicial
function will be able to justify their existence
and carry credibility with the people by
inspiring confidence in the adjudicatory
process. The rule requiring reasons to be
given in support of an order is, like the
principle of audi alteram partem, a
basic principle of natural justice which
must inform every quasi judicial process
and this rule must be observed in its
proper spirit and mere pretence of
compliance with it would not satisfy the
requirement of law.’
16. In McDermott International Inc. Vrs. Burn
Standard Co. Ltd., (2006) 11 SCC 181 the
Supreme Court clarified the rationality behind
providing of reasons and stated the principle as
follows:
‗56. *** ‗*** ―Reason‖ is a ground or motive for a
belief or a course of action, a statement in
justification or explanation of belief or action.
W.P.(C) No.28862 of 2023 Page 51 of 141
It is in this sense that the award must state
reasons for the amount awarded.
The rationale of the requirement of reasons is
that reasons assure that the arbitrator has
not acted capriciously. Reasons reveal the
grounds on which the arbitrator reached
the conclusion which adversely affects
the interests of a party. The contractual
stipulation of reasons means, as held in
Poyser and Mills’ Arbitration, In re, (1964) 2
QB 467 = (1963) 2 WLR 1309 = (1963) 1 All
ER 612, ―proper adequate reasons‖. Such
reasons shall not only be intelligible but shall
be a reason connected with the case which
the court can see is proper. Contradictory
reasons are equal to lack of reasons.’ ‖2
17. In Gurdial Singh Fijji Vrs. State of Punjab, (1979) 2
SCC 368 while dealing with the matter of selection
of candidates who could be under review, if not
found suitable otherwise, the Court explained the
reasons being a link between the materials on
which certain conclusions are based and the
actual conclusions and held, that where providing
reasons for proposed supersession were essential,
then it could not be held to be a valid reason that
the concerned officer’s record was not such as to
justify his selection was not contemplated and
thus was not legal. In this context, the Court held,
‗18. *** ‗Reasons’ *** ‗are the links between the
materials on which certain conclusions are
2 [Ed.: As stated in Bachawat’s Law of Arbitration and Conciliation, 4th Edn., at
pp. 855-56.]
W.P.(C) No.28862 of 2023 Page 52 of 141
based and the actual conclusions’. The Court
accordingly held that the mandatory
provisions of Regulation 5(5) were not
complied with by the Selection Committee.
That an officer was ‗not found suitable’ is the
conclusion and not a reason in support of the
decision to supersede him. True, that it is not
expected that the Selection Committee should
give anything approaching the judgment of a
Court, but it must at least state, as briefly as
it may, why it came to the conclusion that the
officer concerned was found to be not
suitable for inclusion in the Select List.’
This principle has been extended to
administrative actions on the premise that it
applies with greater rigour to the judgments
of the courts.
18. In State of Maharashtra Vrs. Vithal Rao Pritirao
Chawan, (1981) 4 SCC 129 while remanding the
matter to the High Court for examination of certain
issues raised, this Court observed:
‗2. *** It would be for the benefit of this Court
that a speaking judgment is given.’
19. In the cases where the courts have not recorded
reasons in the judgment, legality, propriety and
correctness of the orders by the court of competent
jurisdiction are challenged in the absence of
proper discussion. The requirement of recording
reasons is applicable with greater rigour to the
judicial proceedings. The orders of the court
must reflect what weighed with the court in
W.P.(C) No.28862 of 2023 Page 53 of 141
granting or declining the relief claimed by
the applicant. In this regard we may refer to
certain judgments of this Court.
20. A Bench of the Bombay High Court in Pipe Arts
India (P) Ltd. Vrs. Gangadhar Nathuji Golamare,
(2008) 6 Mah LJ 280, wherein the Bench was
concerned with an appeal against an order, where
prayer for an interim relief was rejected without
stating any reasons in a writ petition challenging
the order of the Labour Court noticed, that legality,
propriety and correctness of the order was
challenged on the ground that no reason was
recorded by the learned Single Judge while
rejecting the prayer and this has seriously
prejudiced the interest of justice. After a detailed
discussion on the subject, the Court held: (Mah LJ
pp. 283-87, paras 8, 10 & 12-22)
‗8. The Supreme Court and different High
Courts have taken the view that it is
always desirable to record reasons in
support of the Government actions
whether administrative or quasi
judicial. Even if the statutory rules do
not impose an obligation upon the
authorities still it is expected of the
authorities concerned to act fairly and
in consonance with basic rule of law.
These concepts would require that any order,
particularly, the order which can be subject-
matter of judicial review, is reasoned one.
Even in Chabungbam Ibohal Singh Vrs.
Union of India, 1995 Supp (2) SCC 83 the
Court held as under:
W.P.(C) No.28862 of 2023 Page 54 of 141
‗8. *** His assessment was, however,
recorded as ―very good‖ whereas qua
the appellant it had been stated ―unfit‖.
As the appellant was being superseded
by one of his juniors, we do not think if
it was enough on the part of the
Selection Committee to have merely
stated ―unfit‖, and then to recommend
the name of one of his juniors. No
reason for unfitness is reflected in the
proceedings, as against what earlier
Selection Committees had done to
which reference has already been
made.’***
10. In Jawahar Lal Singh Vrs. Naresh Singh,
(1987) 2 SCC 222 accepting the plea that
absence of examination of reasons by the
High Court on the basis of which the trial
court discarded prosecution evidence and
recorded the finding of an acquittal in favour
of all the accused was not appropriate, the
Supreme Court held that the order should
record reasons. Recording of proper
reasons would be essential, so that the
appellate court would have advantage of
considering the considered opinion of
the High Court on the reasons which
had weighed with the trial court.
***
W.P.(C) No.28862 of 2023 Page 55 of 141
12. In State of Punjab Vrs. Surinder Kumar,
(1992) 1 SCC 489 while noticing the
jurisdictional distinction between Article 142
and Article 226 of the Constitution of India,
the Supreme Court stated that powers of the
Supreme Court under Article 142 are much
wider and the Supreme Court would pass
orders to do complete justice. The Supreme
Court further reiterated the principle with
approval that the High Court has the
jurisdiction to dismiss petitions or criminal
revisions in limine or grant leave asked for
by the petitioner but for adequate reasons
which should be recorded in the order. The
High Court may not pass cryptic order in
relation to regularisation of service of the
respondents in view of certain directions
passed by the Supreme Court under Article
142 of the Constitution of India. Absence of
reasoning did not find favour with the
Supreme Court. The Supreme Court also
stated the principle that powers of the High
Court were circumscribed by limitations
discussed and declared by judicial decision
and it cannot transgress the limits on the
basis of whims or subjective opinion varying
from Judge to Judge.
13. In Hindustan Times Ltd. Vrs. Union of India,
(1998) 2 SCC 242 the Supreme Court while
dealing with the cases under the labour laws
and the Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952 observed
that even when the petition under Article 226
W.P.(C) No.28862 of 2023 Page 56 of 141
is dismissed in limine, it is expected of the
High Court to pass a speaking order, may be
briefly.
14. Consistent with the view expressed by the
Supreme Court in the afore-referred cases, in
State of U.P. Vrs. Battan, (2001) 10 SCC 607
the Supreme Court held as under:
‗4. *** The High Court has not given any
reasons for refusing to grant leave to
file appeal against acquittal. … The
manner in which appeal against
acquittal has been dealt with by the
High Court leaves much to be desired.
Reasons introduce clarity in an order.
On plainest consideration of
justice, the High Court ought to
have set forth its reasons,
howsoever brief, in its order. The
absence of reasons has rendered
the High Court order not
sustainable.'
15. Similar view was also taken by the Supreme
Court in Raj Kishore Jha Vrs. State of Bihar,
(2003) 11 SCC 519.
16. In a very recent judgment, the Supreme Court
in State of Orissa Vrs. Dhaniram Luhar,
(2004) 5 SCC 568 while dealing with the
criminal appeal, insisted that the reasons in
support of the decision was a cardinal
principle and the High Court should recordW.P.(C) No.28862 of 2023 Page 57 of 141
its reasons while disposing of the matter.
The Court held as under:
‗8. Even in respect of administrative orders
Lord Denning, M.R. in Breen Vrs.
Amalgamated Engg. Union, (1971) 2 QB
175 = (1971) 2 WLR 742 = (1971) 1 All
ER 1148] observed: (QB p. 191 C)„The giving of reasons is one of the
fundamentals of good
administration.‟In Alexander Machinery (Dudley) Ltd.
Vrs. Crabtree, 1974 ICR 120 (NIRC) it
was observed:
‗Failure to give reasons amounts to
denial of justice.’―Reasons are live links between the
mind of the decision-taker to the
controversy in question and the
decision or conclusion arrived at.‖
Reasons substitute subjectivity by
objectivity. The emphasis on recording
reasons is that if the decision reveals
the ―inscrutable face of the sphinx‖, it
can, by its silence, render it virtually
impossible for the courts to perform
their appellate function or exercise the
power of judicial review in adjudging
the validity of the decision. Right to
reason is an indispensable part of a
sound judicial system; reasons at least
sufficient to indicate an application of
W.P.(C) No.28862 of 2023 Page 58 of 141
mind to the matter before court. Another
rationale is that the affected party can
know why the decision has gone
against him. One of the salutary
requirements of natural justice is
spelling out reasons for the order made;
in other words, a speaking-out. The
―inscrutable face of the sphinx‖ is
ordinarily incongruous with a judicial or
quasi judicial performance.’
17. Following this very view, the Supreme Court
in another very recent judgment delivered on
22.02.2008, in State of Rajasthan Vrs.
Rajendra Prasad Jain, (2008) 15 SCC 711
stated that ‗reason is the heartbeat of every
conclusion, and without the same it becomes
lifeless’.
18. Providing of reasons in orders is of essence
in judicial proceedings. Every litigant who
approaches the court with a prayer is
entitled to know the reasons for acceptance
or rejection of such request. Either of the
parties to the lis has a right of appeal and,
therefore, it is essential for them to know the
considered opinion of the court to make the
remedy of appeal meaningful. It is the
reasoning which ultimately culminates
into final decision which may be subject
to examination of the appellate or other
higher courts. It is not only desirable
but, in view of the consistent position of
law, mandatory for the court to pass
orders while recording reasons in
W.P.(C) No.28862 of 2023 Page 59 of 141
support thereof, however, brief they may
be. Brevity in reasoning cannot be
understood in legal parlance as absence
of reasons. While no reasoning in support of
judicial orders is impermissible, the brief
reasoning would suffice to meet the ends of
justice at least at the interlocutory stages
and would render the remedy of appeal
purposeful and meaningful. It is a settled
canon of legal jurisprudence that the courts
are vested with discretionary powers but
such powers are to be exercised judiciously,
equitably and in consonance with the settled
principles of law. Whether or not, such
judicial discretion has been exercised in
accordance with the accepted norms, can
only be reflected by the reasons recorded in
the order impugned before the higher court.
Often it is said that absence of
reasoning may ipso facto indicate
whimsical exercise of judicial discretion.
Patricia Wald, Chief Justice of the D.C.
Circuit Court of Appeals in the article, ―The
Problem with the Courts : Black-robed
Bureaucracy or Collegiality Under Challenge‖
[42 Md L Rev 766, 782 (1983)] observed as
under:
‗My own guiding principle is that virtually
every appellate decision requires some
statement of reasons. The discipline of
writing even a few sentences or paragraphs
explaining the basis for the judgment insures
a level of thought and scrutiny by the court
W.P.(C) No.28862 of 2023 Page 60 of 141
that a bare signal of affirmance, dismissal,
or reversal does not.’
19. The court cannot lose sight of the fact that a
losing litigant has a cause to plead and a
right to challenge the order if it is adverse to
him. Opinion of the court alone can explain
the cause which led to passing of the final
order. Whether an argument was rejected
validly or otherwise, reasoning of the order
alone can show. To evaluate the submissions
is obligation of the court and to know the
reasons for rejection of its contention is a
legitimate expectation on the part of the
litigant. Another facet of providing reasoning
is to give it a value of precedent which can
help in reduction of frivolous litigation. Paul
D. Carrington, Daniel J Meador and Maurice
Rosenburg, Justice on Appeal 10 (West
1976), observed as under:
‗When reasons are announced and can be
weighed, the public can have assurance that
the correcting process is working.
Announcing reasons can also provide public
understanding of how the numerous
decisions of the system are integrated. In a
busy court, the reasons are an essential
demonstration that the court did in fact fix its
mind on the case at hand. An unreasoned
decision has very little claim to acceptance
by the defeated party, and is difficult or
impossible to accept as an act reflecting
systematic application of legal principles.
Moreover, the necessity of stating reasons
W.P.(C) No.28862 of 2023 Page 61 of 141
not infrequently changes the results by
forcing the judges to come to grips with
nettlesome facts or issues which their normal
instincts would otherwise cause them to
avoid.’
20. The reasoning in the opinion of the
Court, thus, can effectively be analysed
or scrutinised by the appellate court.
The reasons indicated by the court could
be accepted by the appellate court
without presuming what weighed with
the court while coming to the impugned
decision. The cause of expeditious and
effective disposal would be furthered by
such an approach. A right of appeal could
be created by a special statute or under the
provisions of the Code governing the
procedure. In either of them, absence of
reasoning may have the effect of negating
the purpose or right of appeal and, thus, may
not achieve the ends of justice.
21. It will be useful to refer words of Justice
Roslyn Atkinson, Supreme Court of
Queensland, at AIJA Conference at Brisbane
on 13.09.2002 in relation to Judgment
Writing. Describing that some judgment could
be complex, in distinction to routine
judgments, where one requires deeper
thoughts, and the other could be disposed of
easily but in either cases, reasons they must
have. While speaking about purpose of the
judgment, he said,
W.P.(C) No.28862 of 2023 Page 62 of 141
‗The first matter to consider is the purpose of
the judgment. To my mind there are four
purposes for any judgment that is written:
(1) to clarify your own thoughts;
(2) to explain your decision to the parties;
(3) to communicate the reasons for the
decision to the public; and(4) to provide reasons for an appeal court
to consider.’
22. Clarity of thought leads to proper reasoning
and proper reasoning is the foundation of a
just and fair decision. In Alexander
Machinery (Dudley) Ltd. Vrs. Crabtree, 1974
ICR 120 (NIRC) the court went to the extent of
observing that,
‗Failure to give reasons amounts to denial of
justice.’
Reasons are really the linchpin to
administration of justice. They are the
link between the mind of the decision-
taker and the controversy in question.
To justify our conclusion, reasons are
essential. Absence of reasoning would
render the judicial order liable to
interference by the higher court. Reasons
are the soul of the decision and its absence
would render the order open to judicial
chastisement. The consistent judicial opinion
is that every order determining rights of the
W.P.(C) No.28862 of 2023 Page 63 of 141
parties in a court of law ought not to be
recorded without supportive reasons. Issuing
reasoned order is not only beneficial to the
higher courts but is even of great utility for
providing public understanding of law and
imposing self-discipline in the Judge as their
discretion is controlled by well-established
norms. The contention raised before us that
absence of reasoning in the impugned order
would render the order liable to be set aside,
particularly, in face of the fact that the
learned Judge found merit in the writ petition
and issued rule, therefore, needs to be
accepted. We have already noticed that
orders even at interlocutory stages may not
be as detailed as judgments but should be
supported by reason howsoever briefly
stated. Absence of reasoning is
impermissible in judicial pronouncement. It
cannot be disputed that the order in
question substantially affect the rights
of the parties. There is an award in favour
of the workmen and the management had
prayed for stay of the operation of the
award. The court has to consider such a plea
keeping in view the provisions of Section 17-
B of the Industrial Disputes Act, where such
a prayer is neither impermissible nor
improper. The contentions raised by the
parties in support of their respective claims
are expected to be dealt with by reasoned
orders. We are not intentionally expressing
any opinion on the merits of the contentions
alleged to have been raised by respective
W.P.(C) No.28862 of 2023 Page 64 of 141
parties before the learned Single Judge.
Suffice it to note that the impugned order is
silent in this regard. According to the learned
counsel appearing for the appellant, various
contentions were raised in support of the
reliefs claimed but all apparently, have found
no favour with the learned Judge and that
too for no reasons, as is demonstrated from
the order impugned in the present appeals.’
21. The principles stated by this Court, as noticed
supra, have been reiterated with approval by a
Bench of this Court in a very recent judgment, in
State of Uttaranchal Vrs. Sunil Kumar Singh Negi,
(2008) 11 SCC 205, where the Court noticed the
order of the High Court which is reproduced
hereunder:
‗8. *** ‗I have perused the order dated 27-5-
2005 passed by Respondent 2 and I do not
find any illegality in the order so as to
interfere under Articles 226/227 of the
Constitution of India. The writ petition lacks
merit and is liable to be dismissed.’ ‘and the Court concluded as under:
‗9. In view of the specific stand taken by
the Department in the affidavit which
we have referred to above, the cryptic
order passed by the High Court cannot
be sustained. The absence of reasons
has rendered the High Court order not
sustainable. Similar view was expressed in
State of U.P. Vrs. Battan, (2001) 10 SCC 607.
W.P.(C) No.28862 of 2023 Page 65 of 141
About two decades back in State of
Maharashtra Vrs. Vithal Rao Pritirao
Chawan, (1981) 4 SCC 129 the desirability
of a speaking order was highlighted. The
requirement of indicating reasons has been
judicially recognised as imperative. The view
was reiterated in Jawahar Lal Singh Vrs.
Naresh Singh, (1987) 2 SCC 222.
10. In Raj Kishore Jha Vrs. State of Bihar, (2003)
11 SCC 519 this Court has held that reason
is the heartbeat of every conclusion and
without the same, it becomes lifeless.
11. ‗8. *** Right to reason is an indispensable
part of a sound judicial system; reasons at
least sufficient to indicate an application of
mind to the matter before court. Another
rationale is that the affected party can know
why the decision has gone against him. One
of the salutary requirements of natural
justice is spelling out reasons for the order
made;…’3
12. In the light of the factual details particularly
with reference to the stand taken by the
Horticulture Department at length in the writ
petition and in the light of the principles
enunciated by this Court, namely, right to
reason is an indispensable part of sound
judicial system and reflect the application of
mind on the part of the court, we are
satisfied that the impugned order of the High
Court cannot be sustained.’
3 [Ed.: As observed in State of Orissa Vrs. Dhaniram Luhar, (2004) 5 SCC 568.]
W.P.(C) No.28862 of 2023 Page 66 of 141
22. Besides referring to the above well-established
principles, it will also be useful to refer to some
text on the subject. H.W.R. Wade in the book
Administrative Law, 7th Edn., stated that the
flavour of the said reasons is violative of a
statutory duty to waive reasons which are
normally mandatory. Supporting a view that
reasons for decision are essential, it was stated:
‗*** A right to reasons is therefore an
indispensable part of a sound system of judicial
review. Natural justice may provide the best rubric
for it, since the giving of reasons is required by the
ordinary man’s sense of justice. *** Reasoned
decisions are not only vital for the purpose of
showing the citizen that he is receiving justice:
they are also a valuable discipline for the tribunal
itself.’
23. We are not venturing to comment upon the
correctness or otherwise of the contentions of law
raised before the High Court in the present
petition, but it was certainly expected of the High
Court to record some kind of reasons for rejecting
the revision petition filed by the Department at the
very threshold. A litigant has a legitimate
expectation of knowing reasons for rejection
of his claim/prayer. It is then alone, that a
party would be in a position to challenge the
order on appropriate grounds. Besides, this
would be for the benefit of the higher or the
appellate court. As arguments bring things hidden
and obscure to the light of reasons, reasoned
judgment where the law and factual matrix of the
case is discussed, provides lucidity and
W.P.(C) No.28862 of 2023 Page 67 of 141
foundation for conclusions or exercise of judicial
discretion by the courts.
24. Reason is the very life of law. When the
reason of a law once ceases, the law itself
generally ceases (Wharton’s Law Lexicon). Such
is the significance of reasoning in any rule of law.
Giving reasons furthers the cause of justice as
well as avoids uncertainty. As a matter of fact it
helps in the observance of law of precedent.
Absence of reasons on the contrary
essentially introduces an element of
uncertainty, dissatisfaction and give entirely
different dimensions to the questions of law
raised before the higher/appellate courts. In
our view, the court should provide its own grounds
and reasons for rejecting claim/prayer of a party
whether at the very threshold i.e. at admission
stage or after regular hearing, howsoever concise
they may be.
25. We would reiterate the principle that when
reasons are announced and can be weighed, the
public can have assurance that process of
correction is in place and working. It is the
requirement of law that correction process of
judgments should not only appear to be
implemented but also seem to have been properly
implemented. Reasons for an order would ensure
and enhance public confidence and would provide
due satisfaction to the consumer of justice under
our justice dispensation system. It may not be
very correct in law to say, that there is a qualified
duty imposed upon the courts to record reasons.
W.P.(C) No.28862 of 2023 Page 68 of 141
26. Our procedural law and the established
practice, in fact, imposes unqualified
obligation upon the courts to record reasons.
There is hardly any statutory provision under the
Income Tax Act or under the Constitution itself
requiring recording of reasons in the judgments
but it is no more res integra and stands
unequivocally settled by different judgments of
this Court holding that the courts and tribunals
are required to pass reasoned judgments/orders.
In fact, Order 14 Rule 2 read with Order 20 Rule 1
of the Code of Civil Procedure requires that, the
court should record findings on each issue and
such findings which obviously should be reasoned
would form part of the judgment, which in turn
would be the basis for writing a decree of the
court.
27. By practice adopted in all courts and by virtue of
judge-made law, the concept of reasoned
judgment has become an indispensable part of
basic rule of law and, in fact, is a mandatory
requirement of the procedural law. Clarity of
thoughts leads to clarity of vision and proper
reasoning is the foundation of a just and fair
decision. In Alexander Machinery (Dudley) Ltd.,
1974 ICR 120 (NIRC) there are apt observations in
this regard to say ―failure to give reasons amounts
to denial of justice‖. Reasons are the real live links
to the administration of justice. With respect we
will contribute to this view. There is a rationale,
logic and purpose behind a reasoned
judgment. A reasoned judgment is primarily
written to clarify own thoughts;
W.P.(C) No.28862 of 2023 Page 69 of 141
communicate the reasons for the decision to
the concerned and to provide and ensure that
such reasons can be appropriately
considered by the appellate/higher court.
Absence of reasons thus would lead to
frustrate the very object stated hereinabove.‖
10.5. The laconic Order of the Nodal Officer (Annexure-7)
acceding to the recommendation of the Screening
Committee (Annexure-Q/2 of the counter affidavit)
without assigning reason for the conclusion renders
the decision reducing the revised pay scale already
granted to the petitioner vulnerable and untenable.
11. To appreciate the meat of the matter, it may be
relevant to take note of argument of Sri Arnav Behera,
learned Additional Standing Counsel appearing for the
opposite parties stemming on the discussion contained
in paragraph 16 of the counter affidavit. He sought to
impress upon this Court that the OAT Staff Rules,
1999 does not speak of grant of promotion to the post
of Senior Assistant from the Senior Grade Typist;
rather a Senior Grade Typist is required to compete
with Senior Grade Diarist and Senior Grade Recorder
for 10% of the vacancies in the Cadre of Senior
Assistant in a year unlike the Junior Assistant who
are promoted to Senior Assistant only by virtue of their
seniority and merit in their Cadre. The Senior
W.P.(C) No.28862 of 2023 Page 70 of 141
Assistant is definitely a promotional post of Senior
Grade Typist but it is not within the Cadre. He
emphatically argued that RACPS envisages pay scale
benefit in the promotional posts within the Cadre. The
promotion of a Senior Grade Typist to Senior Assistant
is by way of induction into another Cadre. The post of
Senior Grade Typist belongs to one Cadre and that of
Senior Assistant to another Cadre. A Senior Grade
Typist may be promoted to the post of Senior Assistant
if he is found eligible in his Cadre; whereas, a Junior
Assistant is promoted to the post of Senior Assistant if
he is found eligible to his Cadre. In order to support
such contention reference has been made to
Annexure-E/2 enclosed to the counter affidavit titled
“Clarification on Revised Assured Career Progression
Scheme (RACPS) for the State Government Employees”
issued by the Government of Odisha in Finance
Department vide Memo No.1738/PCC(A)/37/2013/F.,
dated 20.01.2014, wherein to query that “if the
promotional post in a hierarchy belongs to another
Cadre, then whether the Grade Pay of that
promotional post is to be allowed under RACP
Scheme”, it has been answered “No, the Grade Pay of
hierarchical promotional post which belongs to other
Cadre shall not be allowed under RACP Scheme even if
the former post being only the feeder post of thatW.P.(C) No.28862 of 2023 Page 71 of 141
promotional post. RACP is confined to a Cadre only.
Such promotion shall be a promotion to an ex-Cadre
post and the period of service for RACP on that
promotional post shall be reckoned afresh from the
date of joining on that post”. He also relied on
examples appended to said answer, wherein it is found
mentioned that “A” is an Assistant Engineer in Odisha
Diploma Engineering Service Cadre in the Pay Band of
Rs.9,300/- — Rs.34,800/- and Grade Pay of
Rs.4,600/- who on completion of 20 years of service
from the date of entry post of Junior Engineer shall get
the pay in the Pay Band PB-2 with Pay Scale of
Rs.9,300/- — Rs.34,800/- and Grade Pay of
Rs.4,800/- instead of Pay Scale of Rs.9,300/- —
Rs.34,800/- and Grade Pay of Rs.5,400/- under RACP
Scheme, although the next promotional post of
Assistant Engineer is Assistant Executive Engineer
carrying the Grade Pay of Rs.5,400/- which belongs to
the Odisha Engineering Service Cadre. There are only
two posts in Odisha Diploma Engineering Service
Cadre namely Junior Engineer and Assistant
Engineer. Another example depicts as similarly “B” is
an Officer under ORS Cadre in the Pay Band of
Rs.9,300/- — Rs.34,800/- and Grade Pay of
Rs.4,600/- who on completion of 10 years service shall
get the pay in Pay Band PB-2 with Pay Scale ofW.P.(C) No.28862 of 2023 Page 72 of 141
Rs.9,300/- — Rs.34,800/- and Grade Pay of
Rs.4,800/- under RACP Scheme, although his next
promotional post comes under OAS Cadre carrying the
pay scale of Rs.15,600/- — Rs.39,100/- and Grade
Pay of Rs.5,400/- in Pay Band of PB-3. Under such
premise he submitted that there is nothing wrong in
rectifying the defect being pointed out even though
payments have been made erroneously. He laid stress
on the decision of the Hon‟ble Supreme Court of India
in the case of High Court of Punjab and Haryana Vrs.
Jagdev Singh, (2016) 6 SCR 781 and sought to argue
that the Undertaking as appended to Fifth Schedule
specified as per Rule 17 of the ORSP Rules, 2008
having been furnished by the petitioner to whom the
payment was made in the first instance is clearly
placed on notice that any payment found to have been
made in excess would be required to be refunded or
adjusted against future payments. Sri Arnav Behera,
learned Additional Standing Counsel submitted that
the principle in Rafiq Masih, (2015) 4 SCC 334 laying
down that “Recovery from retired employees or
employees who are due to retire within one year of the
order of recovery” would not be made applicable in the
present set of fact-situation, as he is bound by the
Undertaking.
W.P.(C) No.28862 of 2023 Page 73 of 141
11.1. Sri Sameer Kumar Das, learned Advocate contested by
urging that the opposite parties have misread the
purport of the ORSP Rules, 2008 and misdirected by
submitting that as per the Undertaking furnished by
the petitioner is obligated to refund the excess
payment even if he has no contribution for such error,
if at all there be. Such involuntary Undertaking, as is
apparent from the language employed in Rule 174 of
the ORSP Rules, 2008, cannot be said to have bound
the petitioner.
11.2. It is relevant to notice that, the basis of claim of the
petitioner and refusal by the opposite parties for
RACPS under the ORSP Rules, 2008 in the
promotional post of Senior Assistant is Finance
Department Resolution vide Notification dated
06.02.2013, which is reproduced hereunder:
―Government of Odisha
Finance Department
***
Resolution
No.3560– PCC(A)-49/2012/F., dated 06.02.20134 Rule 17 of the ORSP Rules, 2008, stood thus:
―17. Excess payment to be recovered.–
Where in the course of fixation of pay under these rules, any amount
drawn or received as pay by any Government servant under any rule
is found to be in excess of the amount payable to him under these
rules, the excess amount so drawn or received shall be recoverable
from such Government servant or from his recoverable pensionary
benefits for which he shall submit an undertaking as specified in the
Fifth Schedule.‖
W.P.(C) No.28862 of 2023 Page 74 of 141
Sub: Revised Assured Career Progression Scheme
(RACPs) for the State Government Employees.
The State Government considered the
recommendations of the Fitment Committee and
granted Assured Career Progression (ACP) to the
State Government employees on completion of
15th, 25th and 30th years of service akin to the
Time Bound Advancement (TBA) provisions of the
Orissa Revised Scales of Pay Rules, 1998.
Accordingly, all State Government employees avail
ACP in 3 stages i.e. 1st ACP on completion of 15
years of service, 2nd ACP after 25 years of service
and 3rd ACP after 30 years of service in their
original post/grade by addition of one increment @
3% on the Basic Pay + Grade Pay with next
annual increment after a period of one year from
the date of sanction of the ACP.
2. The Government of India in the meanwhile, had
introduced Modified Assured Career Progression
Scheme (MACPS) for the Central Government
Civilian employees in supersession of the
provisions of ACP scheme. Consequent upon
implementation of the MACPS by the Government
of India, various Service Associations of the State
Government employees have come up with
memoranda to consider implementation of the
MACPS in respect of employees of the State
Government.
3. Taking into account the uncertain promotional
avenues and career stagnation of the State
Government employees, Government after careful
consideration have decided to implement a career
W.P.(C) No.28862 of 2023 Page 75 of 141
advancement scheme to be known as ―REVISED
ASSURED CAREER PROGRESSION SCHEME‖ (RACPS).
4. The RACPS is to be effective from 01.01.2013.
5. The details of the RACP Scheme and conditions for
grant of the financial upgradation under the
Scheme are given in Annexure-I.
By order of the Governor
Sd/-
(D.K. Singh)
Additional Secretary to Government
Annexure-I
Revised Assured Career Progression Scheme
(RACPS):
1. 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 up-gradation either
by promotion or by RACPS will be considered for
the 2nd up-gradation. Similarly an employee
completing 30 years of service and has got two up-
gradation either by RACPS or promotion or both
will be considered for 3rd up-gradation under
RACPS.
2. The financial up-gradation under the RACPS
would be admissible up to the highest Grade Pay
W.P.(C) No.28862 of 2023 Page 76 of 141
of Rs.7600/ in the Pay Band PB-3 under ORSP
Rules, 2008.
3. There shall be a Screening Committee to decide
the eligibility of the persons for up-gradation under
RACPS. The Screening Committee shall follow a
time schedule and meet twice in a financial year,
preferably in the first week of January and first
week of July every year for advance processing of
the cases maturing in that half year. Accordingly,
cases maturing during the first-half i.e. April to
September of a particular financial year shall be
taken up for consideration by the Committee in the
first week of January. Similarly, the Screening
Committee meeting in the first week of July shall
process the cases that would be maturing during
the second-half i.e. October to March of the same
financial year.
4. RACPS shall be permissible in case of those
employees only after regulation of their pay under
O.R.S.P. Rules, 2008. On introduction of RACPS,
the ACP Scheme as under O.R.S.P. Rules, 2008
shall cease to operate.
5. The manner of fixation of pay on promotion shall
be applicable while fixing the pay under RACPS.
An employee can opt to get the pay fixed under
RACPS after accrual of his next increment in
existing Pay Band with Grade Pay within one
month from the date of issue of RACPS order in
his/her favour in the proforma appended as
Fourth Schedule of O.R.S.P. Rules, 2008 else the
pay of the employee shall be fixed from the date of
W.P.(C) No.28862 of 2023 Page 77 of 141
effect of RACP. The next increment due shall be 12
months from the date of such fixation.
6. On grant of financial up-gradation under the
Scheme, there shall be no change in the
designation, classification or status. However,
financial and certain other benefits which are
linked to the pay drawn by an employee such as
HBA, allotment of Government accommodation
may be permitted.
7. Financial up-gradation under the RACPS shall be
purely personal to the employee and shall have no
relevance to his position of seniority in the grade.
As such, there shall be no stepping up of
pay/antedation of increment between Senior and
Junior after regulation of pay under RACPS.
8. The Pay Band PB-3 of Rs.15,600-39,100/- with
Grade Pay of Rs.54400/- being the Group-A Entry
Grade Pay Band shall not be allowed under
RACPS to an employee in Pay Band PB-2.
For example, if an employee in the Pay Band PB-2
i.e. Rs.9,300-34,800/- with Grade Pay of
Rs.4600/- gets financial up-gradation under
RACPS, he shall be entitled to get his/her pay
fixed in the Pay Band PB-2 i.e. Rs.9,300-34,800/-
with Grade Pay of Rs.5400/- instead of Pay Band
PB-3 i.e. Rs.15,600-39,100/- with Grade Pay of
Rs.5400/-.
9. There shall be no further financial up-gradation
under RACPS, if an employee has already availed
three financial up-gradations by way of
RACPS/Promotion.
W.P.(C) No.28862 of 2023 Page 78 of 141
10. Benefit of pay fixation available at the time of
regular promotion shall also be allowed at the time
of financial up-gradation under the Scheme, which
means the pay shall be raised by 3% of the total of
pay in the Pay Band and the Grade Pay drawn
before such upgradation. The employees of the
Cadre having promotional hierarchy will get
the Grade Pay of the promotional post. The
employees in isolated/ex-cadre posts not having
any promotional hierarchy will get the next higher
Grade Pay as per the first schedule of ORSP
Rules, 2008 with the interpolations, if any
introduced subsequently. In case the new Grade
Pay corresponds to a different Pay Band, the
employee will get the Pay Band corresponding to
the revised Grade Pay. There shall, however, be
no further fixation of pay at the time of regular
promotion.
11. The RACPS shall also be applicable to work
charged employees, only if their service conditions
are comparable with the staff of regular
establishment.
12. The RACPS is directly applicable only to State
Government employees. It will not get
automatically extended to employees of State
PSUs/Autonomous/Statutory Bodies under the
administrative control of a Department. Keeping in
view the financial implications involved, a
conscious decision in this regard shall have to be
taken by the respective Governing Body/Board of
Directors as well as the Administrative
Department concerned and wherever it is
W.P.(C) No.28862 of 2023 Page 79 of 141
proposed to adopt the RACPS, prior concurrence of
Finance Department shall be obtained.
13. If a financial up-gradation under the RACPS is not
allowed after 10 years in a Grade Pay and is
deferred for the reason an employee being unfit or
due to Departmental proceedings, his case will be
reviewed in subsequent years. In the matter of
disciplinary/penal proceedings, grant of benefit
under the RACPs shall be subject to
rules/guidelines governing normal promotion.
Such cases shall, therefore, be regulated under
the provisions of the OCS (CCA) Rules, 1962 and
instructions issued there under.
14. The RACPS contemplates mere placement on
personal basis in the Grade Pay and pay scale of
the higher post and shall not amount to actual
functional promotion of the employees concerned.
Therefore, no reservation orders roster shall apply
to the RACPS. However, as usual the rules of
reservation in promotion shall be ensured at the
time of regular promotion. For this reason, it may
not be mandatory to associate members of SC/ST
in the Screening Committee meant to consider
cases for grant of financial up gradation under the
Scheme.
15. Pay drawn in the Pay Band and the Grade Pay
allowed under the RACPS shall be the basis for
determining the terminal benefits in respect of the
retiring employee.
16. If a regular promotion in due course is refused by
the employee before becoming entitled to a
W.P.(C) No.28862 of 2023 Page 80 of 141
financial up-gradation, then there shall be no
financial up-gradation under RACPS as the
employee has not been stagnated due to lack of
promotional opportunities. If, however, financial
up-gradation has been allowed due to stagnation
and the employee refuses the subsequent
promotion, it shall not be a ground to withdraw
the financial up-gradation. He shall, however, not
be eligible to be considered for further financial up-
gradation till he agrees to be considered for
promotion again and the next financial up-
gradation shall also be deferred to the extent of
period of debarment due to such refusal.
17. Employees on deputation need not revert to the
parent Department for availing the benefit of
financial up-gradation under the RACPS. They
may exercise a fresh option to draw the pay in the
Pay Band and the Grade Pay of the post held by
them or the pay plus Grade Pay admissible to
them under the RACPS, whichever is beneficial
like the regular employee in the parent cadre had
they not been deputed.
18. Assured Career Progression (ACP) availed under
ORSP Rules, 2008 shall not be taken into account
while considering the RACPS in favour of an
employee. But, no pay fixation shall be allowed by
extending the benefit of 3% of basic pay and
Grade Pay to the existing Pay hut only the Grade
Pay as applicable shall be allowed while giving
RACPS.
W.P.(C) No.28862 of 2023 Page 81 of 141
Sd/-
(D.K. Singh)
Additional Secretary to Government‖
11.3. It is highlighted by the learned counsel for the
petitioner that as paragraph 1 of the RACPS, the
petitioner having completed 20 years of service and got
only one promotion after 20 years of service is entitled
for upgradation and in terms of paragraph 10 thereof,
the petitioner in the Cadre of Senior Grade Typist
having promotional hierarchy is eligible to get the
Grade Pay of the promotional post. It can also be
pertinent to refer to Serial No.12 appended to
Schedule-I specified under Rule 7 of the OAT Staff
Rules, 1999, wherein it has been mentioned as
follows:
―Rule.7
Eligibility for promotion.–
In order to be eligible for promotion, one shall have the
requisite qualification and experience and must have
passed the departmental examination, if necessary, as
specified in Schedule-I.Schedule-I
(See Rule 7)
Sl. Name of the Method of Qualifi- Eligibility
No. post with the recruitment cation
class which it for
belongs direct
recruitmW.P.(C) No.28862 of 2023 Page 82 of 141
ent
12. Senior By promotion By Promotion from
Assistant OR among the Junior
In case off non- Assistants
availability of or
suitable Store Keeper of the
candidates, by Odisha
deputation from Administrative
State Government Tribunal who have
rendered three years
of continuous service
as such and must
have passed the
preliminary accounts
examination
conducted by the
Board of Revenue /
Madhusudhan
Institute of Accounts
and Finance
(Explanation:
The post of Junior
Assistant in Odisha
Administrative
Tribunal includes the
post of Storekeeper
in Odisha
Administered
Tribunal):
Provided that 10% of
the vacancies in the
Cadre of Senior
Assistant in as year
shall be filled up
from among
the Senior Grade
Typists/
Senior Grade
Diaries/
Senior Grade
Recorder
of the Odisha
Administrative
Tribunal who have
passed Matriculation
Examination and
have rendered 10W.P.(C) No.28862 of 2023 Page 83 of 141
years of continuous
service as such on
the first day of
January in which
the recruitment is
made.
11.4. Glance at the above provisions would make it ex facie
apparent that there is no restriction in availing the
benefit of getting Grade Pay of the Cadre having
promotional hierarchy on the employees like Senior
Grade Typist. The invidious distinction sought to be
made by the opposite parties is reprehensible.
11.5. This Court derives analogy from yet another Finance
Department Resolution No. 26274– FIN-PCC-MEET-
0001/2012/F., dated 08.08.2013, which has taken
effect from 01.01.2013. Relevant portion of the said
Resolution stood as under:
―Government of Odisha
Finance Department
****
Resolution
No.26274– FIN-PCC-MEET-0001/2012/F.,
dated 08.08.2013Sub.: Revision of grade pay in certain posts with Grade
Pay of Rs.4,200 and Rs.4,600.
Under ORSP Rules, 2008, the revision of pay has
been effected on scale to scale basis with merger
of scales of pay under the ORSP Rules, 1998 in
Pay Bands. The pay bands constitute differentW.P.(C) No.28862 of 2023 Page 84 of 141
Grade Pay. In Grade Pay Rs.4,200 pertaining to
Pay Band PB-2, seven pay scales existing under
the ORSP Rules, 1998 were merged. As a
consequence of such merger, some of the
promotional scales existing under the previous pay
rule are now placed in Pay Band PB-2 with same
Grade Pay of Rs.4200.
2. The introduction of Revised Assured Career
Progression (RACP) Scheme in Finance Department
Resolution No.3560, dated 06.02.2013 with effect
from 01.01.2013 envisage three financial
upgradations at an interval of 10/20/30 years of
the service career with stipulation in the said FD
Resolution. As per the said Finance Department
Resolution, services having defined line of
promotion shall avail the Pay Band/Grade Pay of
next promotional hierarchy. Due to same Grade
Pay existing in many of the Cadres having defined
line of promotion the Grade Pay does not change
as per the Scheme dated 06.02.2013 thereby
creating resentment among such cadres. The
Service Association of various cadres have been
representing for removal of such anomaly.
3. After careful consideration of the recommendation
of Anomaly Committee and in exercise of powers
conferred under Rule 19 of ORSP Rules, 2008,
Government have been pleased to incorporate the
following changes in the Grade Pay of posts of
different Departments mentioned at Table-I to
mitigate such anomaly:
W.P.(C) No.28862 of 2023 Page 85 of 141
i) Enhance the promotional Grade Pay of the
cadres from Rs.4,200 to Rs.4,600 where the
feeder post Grade Pay is Rs.4,200.
ii) With the feeder post Grade Pay of Rs.4,200,
where more than one promotional hierarchy
is at Rs.4,200 Grade Pay, the promotional
posts shall be merged to one Cadre with the
Grade Pay Rs.4,600. For example, the
Section Officer, Level-Il and Level-I in Heads
of Department Cadre shall be merged to one
cadre of Section Officer with grade pay
Rs.4600.
iii) The Grade Pay of the next promotional post
now carrying the Grade Pay of Rs.4,600
shall be enhanced to Rs.4,800. There are
services in which the posts carrying grade
pay of Rs.4,600 gets filled up partly by direct
recruitment and partly by promotion from a
post now carrying grade pay Rs.4,200. If the
Grade Pay of such feeder posts is enhanced
to Rs.4,600 the Grade Pay of such
promotional posts shall be enhanced to
Rs.4,800.
11.6. This Court does not subscribe to the argument
advanced on behalf of the opposite parties based on
the Clarification dated 20.01.2014. The view point of
the opposite parties that though the post of Senior
Assistant is a promotional post of Senior Grade Typist,
the latter would be entitled to Grade Pay within the
Cadre not in the Cadre of the former is unacceptable.
W.P.(C) No.28862 of 2023 Page 86 of 141
It is worthwhile to say that Clarification dated
20.01.2014 cannot supersede the Finance Department
Resolution dated 06.02.2013.
11.7. There can be no gainsaying that an Office
Memorandum cannot “clarify” the RACPS Resolution
dated 6th February 2013, which is of a legislative
character. [Vide, State of Odisha Vrs. Bikash Ranjan
Dash, 2021 SCC OnLine Ori 1839]. This Court in State
of Odisha Vrs. Bihari Lal, 2016 SCC OnLine 3335
taking note of aforesaid Resolution dated 06.02.2013
vis-à-vis Clarification dated 20.01.2014, made the
following observation:
―14. The basic object of the RACP Scheme is to give
incentive to the employees who have not been able
to either promotion within certain years of service.
The employees unless are given incentive by way
of financial upgradation, the morale of the
employees will be degraded and the employee will
suffer from frustration. Of course, the promotional
post if available, but the employee is not eligible to
get the same, the financial upgradation is uncalled
for. It is available from the materials on record that
the earlier TBA principle was available and5 Challenge against this Judgment being carried to the Hon‟ble Supreme Court
of India in State of Odisha Vrs. Bihari Lal Barik, Diary No(s). 20358 of 2017,
the following Order was passed on 23.08.2017:
―Delay condoned.
We do not see any ground to interfere with the impugned order. The special
leave petition is accordingly dismissed.
Pending applications, if any, shall also stand disposed of.‖W.P.(C) No.28862 of 2023 Page 87 of 141
subsequently the ACPS Scheme was introduced.
The ORSP Rules, 2008 was enacted with a view to
revise the scale of pay in 2008 in terms of Pay
Band with Grade Pay by converting the then scale
of pay under the ORSP Rules, 1998. Earlier scale
of pay was there, but under the ORSP Rules, 2008
the Pay Band and Grade Pay were introduced.
Thereafter on 06.02.2013 the RACP Scheme was
introduced by revising the years to 10, 20 and 30.
***
16. From the aforesaid analysis of the RACP of
paragraph 10 it is clear that the pay will be fixed
under the ORSP Rules, 2008, but the modalities
for awarding RACP would be given under this
Scheme. On clear harmonious interpretation
of paragraph 10 it is found that the
employees of cadre having promotional
hierarchy will get Grade Pay of the
promotional post and in case the new Grade
Pay corresponds to a different Pay Band, the
employee will get Pay Band corresponding to
upgraded Grade Pay. Here the learned Addl.
Government Advocate drew our attention to a
clarification issued by the State Government
in the Finance Department on 20.01.2014 at
paragraph-12. According to said paragraph-
12 the Grade Pay of promotional post which
belongs to other cadre shall not be allowed
under RACP Scheme even if the former post
being only the feeder post of that
promotional post and the RACP is confined to
the cadre only. He further stated that it has been
further clarified in paragraph-12 that such
W.P.(C) No.28862 of 2023 Page 88 of 141
promotion shall be to an ex-cadre post and the
period of service for RACP on that promotional post
shall be recokoned afresh from the date of joining
in that post. Such clarification is absolutely
contrary to paragraph-10 of the RACP
Scheme because paragraph-12 has denied
benefit of RACPS to the employee entitled to
promotional avenue under recruitment Rules,
whereas paragraph-10 of RACPS allow same.
If clarification is contrary to Scheme, Scheme
has to be followed. Clarification has no any
legislative value, whereas a scheme being in
absence of rule has got binding effect and to
be followed by all in the Administration.
Clarification by State Government has no legal
force unless it is converted to an Act, Rule,
Regulation or Scheme or Culminates from such
Act, Rules, Regulation and Scheme. Be that as it
may, the Scheme is clear that the RACP is
available to an employee having promotional
hierarchy. We are of the view that opp. Party No. 1
as V.L.W.6 being not promoted to the post of
G.P.E.O.7 and P.A.8 is entitled to RACP Scheme
and as such ORSP Rules, 2008 will be applicable
to them.‖
11.8. It is thus trite that executive instructions cannot
amend or supersede the statutory Rules or add
something therein, nor the orders be issued in
contravention of the statutory rules for the reason that
6 Village Level Worker
7 Grama Panchayat Extension Officers
8 Progress Assistants
W.P.(C) No.28862 of 2023 Page 89 of 141
an administrative instruction is not a statutory Rule
nor does it have any force of law; while statutory rules
have full force of law provided the same are not in
conflict with the provisions of the Act. [Vide, State of
U.P. Vrs. Babu Ram Upadhyaya, AIR 1961 SC 751;
State of Tamil Nadu Vrs. Hind Stone, AIR 1981 SC 711].
In Punit Rai Vrs. Dinesh Chaudhary, (2003) 8 SCC 204;
Union of India Vrs. Naveen Jindal, (2004) 2 SCC 510
and State of Kerala Vrs. Chandra Mohan (2004) 3 SCC
429, it has been held that executive instructions
cannot be termed as law within the meaning of Article
13(3)(a) of the Constitution of India. In Bishamber
Dayal Chandra Mohan Vrs. State of U.P., AIR 1982 SC
33 it is observed that, the difference in a statutory
order and an executive order observing that executive
instruction issued under Article 162 of the
Constitution of India does not amount to law.
However, if an order can be referred to a statutory
provision and held to have been passed under the said
statutory provision, it would not be merely an
executive fiat but an order under the statute having
statutory force for the reason that it would be a
positive State made law. So, in order to examine as to
whether an order has a statutory force, the Court has
to find out and determine as to whether it can be
referred to the provision of the statute.
W.P.(C) No.28862 of 2023 Page 90 of 141
11.9. In State of Maharashtra Vrs. Jagannath Achyut
Karandikar, (1989) 1 SCR 947 it has been succinctly
laid down as:
―The Circular is an executive instruction whereas the
1955 Rules are statutory since framed under the
proviso to Article 309 of the Constitution. The
Government could not have restricted the operation of
the statutory rules by issuing the executive instruction.
The executive instruction may supplement but not
supplant the statutory rules. The High Court was in
error in ignoring this well accepted principle.‖11.10. In Union of India Vrs. Somasundram Viswanath,
(1988) Supp.3 SCR 146 the Hon‟ble Supreme Court of
India has interpreted circular/executive instructions
vis-à-vis rules made as follows:
―It is well settled that the norms regarding recruitment
and promotion of officers belonging to the Civil Services
can be laid down either by a law made by the
appropriate Legislature or by rules made under the
proviso to Article 309 of the Constitution of India or by
means of executive instructions issued under Article 73
of the Constitution of India in the case of Civil Services
under the Union of India and under Article 162 of the
Constitution of India in the case of Civil Services under
the State Governments. If there is a conflict between the
executive instructions and the rules made under the
proviso to Article 309 of the Constitution of India, the
rules made under proviso to Article 309 of the
Constitution of India prevail, and if there is conflict
between the rules made under the proviso to
W.P.(C) No.28862 of 2023 Page 91 of 141
Article 309 of the Constitution of India and the
law made by the appropriate Legislature the law
made by the appropriate Legislature prevails.‖11.11. In Employees’ State Insurance Corporation Vrs.
Union of India, (2022) 11 SCC 392 it has been stated
thus:
―17. In P.D. Aggarwal Vrs. State of U.P., (1987) 3 SCC
622 a two-Judge Bench of this Court declined to
grant primacy to an office memorandum issued by
the Government of Uttar Pradesh which
purportedly amended the method of recruitment of
Assistant Civil Engineers in the U.P. Public Service
Commission without amending the relevant
regulations. The Court held:
‗20. The Office Memorandum dated 07.12.1961
which purports to amend the United
Provinces Service of Engineers (Buildings
and Roads Branch) Class II Rules, 1936 in
our opinion cannot override, amend or
supersede statutory rules. This
Memorandum is nothing but an
administrative order or instruction and
as such it cannot amend or supersede
the statutory rules by adding something
therein as has been observed by this Court
in Sant Ram Sharma Vrs. State of Rajasthan,
AIR 1967 SC 1910 = (1968) 1 SCR 111.
Moreover the benefits that have been
conferred on the temporary Assistant
Engineers who have become members of the
service after being selected by the PublicW.P.(C) No.28862 of 2023 Page 92 of 141
Service Commission in accordance with the
service rules are entitled to have their
seniority reckoned in accordance with the
provisions of Rule 23 as it was then, from the
date of their becoming member of the service,
and this cannot be taken away by giving
retrospective effect to the Rules of 1969 and
1971 as it is arbitrary, irrational and not
reasonable.’ ***‖11.12. In the present context, the Circular dated
20.01.2014 could not have overriding effect on the
Resolution dated 06.02.2013.
11.13. The legal position regarding the distinction
between upgradation and promotion is well settled. In
Union of India Vrs. Pushpa Rani, (2008) 9 SCC 24, the
Supreme Court of India had examined and explained
the difference thus:
―In legal parlance, upgradation of a post involves
transfer of a post from lower to higher grade and
placement of the incumbent of that post in the higher
grade. Ordinarily, such placement does not involve
selection but in some of the service rules and/or policy
framed by the employer for upgradation of posts,
provision has been made for denial of higher grade to
an employee whose service record may contain adverse
entries or who may have suffered punishment. The
word ‗promotion’ means advancement or preferment in
honour, dignity, rank, grade. Promotion thus not only
covers advancement to higher position or rank but also
implies advancement to a higher grade. In service law,
W.P.(C) No.28862 of 2023 Page 93 of 141
the word ‗promotion’ has been understood in wider
sense and it has been held that promotion can be either
to a higher pay scale or to a higher post.‖The decision in Union of India Vrs. Pushpa Rani, (2008)
9 SCC 24 was discussed in Bharat Sanchar Nigam
Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC
510 and ruling has been enunciated as under:
―In Pushpa Rani, (2008) 9 SCC 242, this Court while
considering a scheme contained in the Letter dated
09.10.2003 held that it provided for a restructuring
exercise resulting in creation of additional posts in most
of the cadres and there was a conscious decision to fill
up such posts by promotion from all eligible and
suitable employees and, therefore, it was a case of
promotion and, consequently, the reservation rules were
applicable.‖It has been set forth in Bharat Sanchar Nigam Limited
Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 as
follows:
―29. On a careful analysis of the principles relating to
promotion and upgradation in the light of the
aforesaid decisions, the following principles
emerge:
(i) Promotion is an advancement in rank or
grade or both and is a step towards
advancement to a higher position, grade or
honour and dignity. Though in the traditional
sense promotion refers to advancement to a
higher post, in its wider sense, promotion
may include an advancement to a higher pay
W.P.(C) No.28862 of 2023 Page 94 of 141
scale without moving to a different post. But
the mere fact that both– that is,
advancement to a higher position and
advancement to a higher pay scale– are
described by the common term ―promotion‖,
does not mean that they are the same. The
two types of promotion are distinct and have
different connotations and consequences.
(ii) Upgradation merely confers a financial
benefit by raising the scale of pay of the post
without there being movement from a lower
position to a higher position. In an
upgradation, the candidate continues to hold
the same post without any change in the
duties and responsibilities but merely gets a
higher pay scale.
(iii) Therefore, when there is an advancement to
a higher pay scale without change of post, it
may be referred to as upgradation or
promotion to a higher pay scale. But there is
still difference between the two. Where the
advancement to a higher pay scale without
change of post is available to everyone who
satisfies the eligibility conditions, without
undergoing any process of selection, it will be
upgradation. But if the advancement to a
higher pay scale without change of post is as
a result of some process which has elements
of selection, then it will be a promotion to a
higher pay scale. In other words,
upgradation by application of a process of
selection, as contrasted from an upgradation
simpliciter can be said to be a promotion in
W.P.(C) No.28862 of 2023 Page 95 of 141
its wider sense, that is, advancement to a
higher pay scale.
(iv) Generally, upgradation relates to and applies
to all positions in a category, who have
completed a minimum period of service.
Upgradation can also be restricted to a
percentage of posts in a cadre with reference
to seniority (instead of being made available
to all employees in the category) and it will
still be an upgradation simpliciter. But if
there is a process of selection or
consideration of comparative merit or
suitability for granting the upgradation or
benefit of advancement to a higher pay scale,
it will be a promotion. A mere screening to
eliminate such employees whose service
records may contain adverse entries or who
might have suffered punishment, may not
amount to a process of selection leading to
promotion and the elimination may still be a
part of the process of upgradation simpliciter.
Where the upgradation involves a process of
selection criteria similar to those applicable
to promotion, then it will, in effect, be a
promotion, though termed as upgradation.
(v) Where the process is an upgradation
simpliciter, there is no need to apply the
rules of reservation. But where the
upgradation involves a selection process and
is therefore a promotion, the rules of
reservation will apply.
W.P.(C) No.28862 of 2023 Page 96 of 141
(vi) Where there is a restructuring of some cadres
resulting in creation of additional posts and
filling of those vacancies by those who
satisfy the conditions of eligibility which
includes a minimum period of service, will
attract the rules of reservation. On the other
hand, where the restructuring of posts does
not involve creation of additional posts but
merely results in some of the existing posts
being placed in a higher grade to provide
relief against stagnation, the said process
does not invite reservation.‖
See also, Rama Nand Vrs. Chief Secretary, Government
of NCT of Delhi, (2020) 6 SCR 19 = 2020 (II) OLR (SC)
487, where it has been observed as follows:
―17. The reasons for coming to this conclusion is based
on the principles set out in the Bharat Sanchar
Nigam Limited Vrs. R. Santhakumari Velusamy,
(2011) 9 SCC 510. No doubt, sometimes there is a
fine distinction which arises in such cases, but, a
holistic view has to be taken considering the
factual matrix of each case. The consequence of
reorganisation of the cadre resulted in not only a
mere re-description of the post but also a much
higher pay scale being granted to the appellants
based on an element of selection criteria. We say
so as, at the threshold itself, there is a requirement
of a minimum 5 years of service. Thus, all
Telephone Operators would not automatically be
eligible for the new post. Undoubtedly, the
financial emoluments, as stated above, are much
higher. The third important aspect is that the
W.P.(C) No.28862 of 2023 Page 97 of 141
appellants had to go through the rigorous of a
specialised training. All these cannot be stated to
be only an exercise of merely re-description or
reorganisation of the cadre. On applying the test in
BSNL case (supra), as per sub-para (i) of
paragraph 29, promotion may include an
advancement to a higher pay scale without moving
to a different post. In the present case, there is a
re-description of the post based on higher pay
scale and a specialised training. It is not a case
covered by sub-para (iii), as canvassed by learned
counsel for the appellants, where the higher pay
scale is available to everyone who satisfies the
eligibility condition without undergoing any
process of selection. The training and the
benchmark of 5 years of service itself involve an
element of selection process. Similarly, it is not as
if the requirement is only a minimum of 5 years of
service by itself, so as to cover it under sub-para
(iv).
18. We have already observed that the complete
factual contours of the difference between the two
posts would have to be examined in the given
factual situation and the triple criteria of minimum
5 years of service, a specialised training and much
higher financial emoluments leaves us in no
manner of doubt. What was done has to be
considered as a promotion disentitling the
appellants to the benefits of the ACP Scheme.
As the very objective of the ACP Scheme, as
set out, is “to deal with the problem of
genuine stagnation and hardship faced by
W.P.(C) No.28862 of 2023 Page 98 of 141
the employees due to lack of adequate
promotional avenues.”
In Union of India Vrs. M.V. Mohanan Nair, (2020) 7 SCR
851, describing object behind ACP (Assured Career
Progression) versus MACP (Modified Assured Career
Progression) with reference to policy and wisdom of
Pay Commission, it has been stated as follows:
―28. The object behind the MACP Scheme is to provide
relief against the stagnation. If the arguments of
the respondents are to be accepted, they would be
entitled to be paid in accordance with the grade
pay offered to a promotee; but yet not assume the
responsibilities of a promotee. As submitted on
behalf of Union of India, if the employees are
entitled to enjoy Grade Pay in the next promotional
hierarchy, without the commensurate
responsibilities as a matter of routine, it would
have an adverse impact on the efficiency of
administration.
29. The change in policy brought about by
supersession of ACP Scheme with the MACP
Scheme is after consideration of all the disparities
and the representations of the employees. The
Sixth Central Pay Commission is an expert body
which has comprehensively examined all the
issues and the representations as also the issue of
stagnation and at the same time to promote
efficiency in the functioning of the departments.
MACP Scheme has been introduced on the
recommendation of the Sixth Central Pay
W.P.(C) No.28862 of 2023 Page 99 of 141
Commission which has been accepted by the
Government of India. After accepting the
recommendation of the Sixth Central Pay
Commission, the ACP Scheme was withdrawn and
the same was superseded by the MACP Scheme
with effect from 01.09.2008. This is not some
random exercise which is unilaterally done by the
Government, rather, it is based on the opinion of
the expert body– Sixth Central Pay Commission
which has examined all the issues, various
representations and disparities. Before making the
recommendation for the Pay Scale/Revised Pay
Scale, the Pay Commission takes into
consideration the existing pay structure, the
representations of the government servants and
various other factors after which the
recommendations are made. When the expert body
like Pay Commission has comprehensively
examined all the issues and representations and
also took note of inter-departmental disparities
owing to varying promotional hierarchies, the court
should not interfere with the recommendations of
the expert body. When the Government has
accepted the recommendation of the Pay
Commission and has also implemented those, any
interference by the court would have a serious
impact on the public exchequer.
30. Observing that it is the function of the Government
which normally acts on the recommendations of
the Pay Commission which is the proper authority
to decide upon the issues, in Union of India Vrs.
P.V. Hariharan, (1997) 3 SCC 568, it was held as
under:
W.P.(C) No.28862 of 2023 Page 100 of 141
‗5. *** It is the function of the Government which
normally acts on the recommendations of a
Pay Commission. Change of pay scale of a
category has a cascading effect. Several
other categories similarly situated, as well as
those situated above and below, put forward
their claims on the basis of such change. The
Tribunal should realise that interfering with
the prescribed pay scales is a serious matter.
The Pay Commission, which goes into the
problem at great depth and happens to have
a full picture before it, is the proper authority
to decide upon this issue. Very often, the
doctrine of ‗equal pay for equal work’ is also
being misunderstood and misapplied, freely
revising and enhancing the pay scales across
the board. We hope and trust that the
Tribunals will exercise due restraint in the
matter. Unless a clear case of hostile
discrimination is made out, there would be no
justification for interfering with the fixation of
pay scales. We have come across orders
passed by Single Members and that too quite
often Administrative Members, allowing such
claims. These orders have a serious impact
on the public exchequer too. It would be in the
fitness of things if all matters relating to pay
scales, i.e., matters asking for a higher pay
scale or an enhanced pay scale, as the case
may be, on one or the other ground, are
heard by a Bench comprising at least one
Judicial Member. ***’W.P.(C) No.28862 of 2023 Page 101 of 141
31. Observing that the decision of expert bodies like
the Pay Commission is not ordinarily subject to
judicial review, in State of U.P. Vrs. U.P. Sales Tax
Officers Grade II Association, (2003) 6 SCC 250,
the Supreme Court held as under:
‗11. There can be no denial of the legal position
that decision of expert bodies like the Pay
Commission is not ordinarily subject to
judicial review obviously because pay
fixation is an exercise requiring going into
various aspects of the posts held in various
services and nature of the duties of the
employees. ***.’
32. In Secretary, Government (NCT of Delhi) Vrs.
Grade-1 Officers Association, (2014) 13 SCC 296,
the Supreme Court refused to interfere with the
ACP Scheme as it would violate Government policy
and since exercise of judicial review would not be
proper, upheld the ACP Scheme and the conditions
therein.
33. In State of Tamil Nadu Vrs. S. Arumugham, (1998)
2 SCC 198, the Supreme Court has observed that
the Government has the right to frame a policy to
ensure efficiency and proper administration and to
provide to suitable avenues for promotion to
officers working in different department. The
Supreme Court has further observed that the
Tribunal cannot substitute its own views for the
views of the Government or direct new policy
based on the views of Tribunal.
W.P.(C) No.28862 of 2023 Page 102 of 141
34. Observing that fixation of pay and determination of
responsibilities is a complex matter which is for the
executive to take a decision, the courts should
approach such matters with restraint, in State of
Haryana Vrs. Haryana Civil Secretariat Personal
Staff Association, (2002) 6 SCC 72, the Supreme
Court held as under:
‗10. It is to be kept in mind that the claim of equal
pay for equal work is not a fundamental right
vested in any employee though it is a
constitutional goal to be achieved by the
Government. Fixation of pay and
determination of parity in duties and
responsibilities is a complex matter which is
for the executive to discharge. While taking a
decision in the matter, several relevant
factors, some of which have been noted by
this Court in the decided case, are to be
considered keeping in view the prevailing
financial position and capacity of the State
Government to bear the additional liability of
a revised scale of pay. *** That is not to say
that the matter is not justiciable or that the
courts cannot entertain any proceeding
against such administrative decision taken
by the Government. The courts should
approach such matters with restraint and
interfere only when they are satisfied that
the decision of the Government is patently
irrational, unjust and prejudicial to a section
of employees and the Government while
taking the decision has ignored factors which
are material and relevant for a decision in theW.P.(C) No.28862 of 2023 Page 103 of 141
matter. Even in a case where the court holds
the order passed by the Government to be
unsustainable then ordinarily a direction
should be given to the State Government or
the authority taking the decision to
reconsider the matter and pass a proper
order. The court should avoid giving a
declaration granting a particular scale of pay
and compelling the Government to implement
the same. ***.’
35. The prescription of Pay Scales and incentives are
matters where decision is taken by the
Government based upon the recommendation of
the expert bodies like Pay Commission and several
relevant factors including financial implication and
court cannot substitute its views. As held in
Haryana Civil Secretariat Personal Staff
Association (2002) 6 SCC 72, the court should
approach such matters with restraint and interfere
only when the court is satisfied that the decision of
the Government is arbitrary. Even in a case where
the court takes the view that order/Scheme
passed by the Government is not an equitable one,
ordinarily only a direction could be given to the
State Government or the authority for
consideration of the matter and take a decision. In
the present batch of cases where the respondents
are claiming financial upgradation in the grade
pay of promotional hierarchy, no grounds are
made out to show that the MACP Scheme granting
financial upgradation in the next grade pay is
arbitrary and unjust; warranting interference. The
implementation of the MACP Scheme is claimed to
W.P.(C) No.28862 of 2023 Page 104 of 141
have led to certain anomalies; but as pointed out
earlier, MACP Scheme itself is not under
challenge.‖
11.14. Government of Odisha in Finance Department
vide Resolution No.3560-PCC(A)-49/2012/F, dated
06.02.2013, in consideration of Fitment Committee
recommendations, granted ACP to the State
Government employees on completion of 15th, 25th and
30th years of service akin to the Time Bound
Advancement (TBA) provisions of the Odisha Revised
Scales of Pay Rules, 1998, and taking into account the
uncertain promotional avenues and career stagnation
of the State Government employees, decided to
implement a career advancement scheme to be known
as Revised Assured Career Progression Scheme
(RACPS), with effect from 01.01.2013.
11.15. It can be culled out from the RACPS under the
ORSP Rules, 2008, that after the Central Government
introduced a Modified Assured Career Progression
Scheme (MACPS), the Government of Odisha in the
Finance Department vide Resolution dated 6th
February 2013 allowed the RACPS for the State
Government employees with effect from 01.01.2013. In
terms of the said RACPS, three financial upgradations
are made available counted from the direct entry grade
on completion of 10, 20 and 30 years of service in a
W.P.(C) No.28862 of 2023 Page 105 of 141
single Cadre in the absence of promotion. In terms
thereof an employee:
(a) on completion of 10 years of service in the entry
grade, will be considered for the first upgradation
under the RACPS;
(b) on completion of 20 years of service and
having got only one upgradation either by
promotion or by RACPS, will be considered for
the second upgradation;
(c) likewise on completion of 30 years of service and
having got two upgradations either by RACPS or
promotion or both will be considered for third
upgradation under the RACPS.
11.16. Per Paragraphs 2 and 4 of Annexure-I to the
RACPS, it has further been stipulated that the
financial upgradation under the RACPS would be
admissible up to the highest Grade Pay of Rs.7,600/-
in the Pay Band– PB-3 under the ORSP Rules, 2008
and shall be permissible with effect from 1st January
2013 in case of those employees only after regulation
of their pay under the ORSP Rules, 2008. It is stated
that on introduction of the RACPS, the ACP Scheme
under the ORSP, 2008, ceased to be operational.
W.P.(C) No.28862 of 2023 Page 106 of 141
Further, under Paragraph 4 thereof, it was stipulated
that there will be a Screening Committee to decide the
eligibility of persons for upgradation under RACPS.
In paragraph 10 of the RACPS it has been clearly
found mentioned that benefit of pay fixation available
at the time of regular promotion shall also be allowed
at the time of financial upgradation under the Scheme,
which means the pay shall be raised by 3% of total of
pay in the Pay Band and the Grade Pay drawn before
such upgradation. The employees of the Cadre having
promotional hierarchy will get the Grade Pay of the
promotional post. The employees in isolated/ex-Cadre
posts not having any promotional hierarchy will get
the next higher Grade Pay as per the First Schedule of
ORSP Rules, 2008 with the interpolations, if any,
introduced subsequently. In case the new Grade Pay
corresponds to a different Pay Band, the employee will
get the Pay Band corresponding to the revised Grade
Pay. There shall, however, be no further fixation of pay
at the time of regular promotion. In this paragraph the
expression “immediate next higher Grade Pay” is
conspicuously absent. Therefore, there is justification
in holding that the petitioner would be entitled to
Grade Pay corresponding to the Pay Band of
promotional hierarchy. In this context cue can be had
to what has been stated in Union of India Vrs. M.V.
W.P.(C) No.28862 of 2023 Page 107 of 141
Mohanan Nair, (2020) 7 SCR 851, wherein it has been
observed as follows:
―27. The learned amicus and the learned counsel
appearing for the respondents urged the court to
adopt a ―purposive interpretation‖ that the words
―immediate next higher Grade Pay‖ to be
interpreted as ―Grade Pay of the next promotional
post‖ in the hierarchy. MACP Scheme envisages
merely placement in the immediate next higher
Grade Pay. By perusal of the MACP Scheme
extracted earlier, it is seen that the words used in
the Scheme are ―placement in the immediate
next higher Grade Pay in the hierarchy of the
recommended revised pay bands‖. The term
―Grade Pay in the next promotional post‖ is
conspicuously absent in the entire body of the
MACP Scheme. The argument of the respondents
that the benefit of MACP Scheme is referable to the
promotional post, is de hors the MACP Scheme and
cannot be accepted. Though ACP and MACP
Schemes are intended to provide relief against
stagnation, both the Schemes have different
features. Pay scales under the Sixth Pay
Commission and the MACP Scheme are stated to
be more beneficial since it extends to the
employees with time intervals with higher pay
bands and various facilities which were not
available under the ACP Scheme including the
three financial upgradations in shorter time span.
In any event, MACP Scheme has not been
challenged by the respondents. As rightly
contended by the learned ASG, the respondents
cannot be permitted to cherry-pick beneficial
W.P.(C) No.28862 of 2023 Page 108 of 141
features from the erstwhile ACP Scheme and also
take advantage of the beneficial features in the
MACP Scheme.‖Under paragraph 13, it was provided that if a financial
upgradation of the RACPS was not allowed due to
certain departmental proceedings, the case of the
concerned employee would be reviewed in the
subsequent years. In the event of disciplinary/penal
proceedings, the grant of benefit under the RACPS
would be subject to the rules/guidelines governing
normal promotion and would be governed under the
provisions of the Odisha Civil Services (Classification,
Control and Appeal) Rules, 1962.
11.17. This Court cannot be oblivious to take note of
conceptual understanding with regard to ACP prior to
01.01.2013 and treatment of the same towards
consideration of RACPS. It is explained in State of
Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori
1839 that:
―A careful perusal of the RACPS introduced by the
resolution of the FD dated 6th February 2013 reveals
that even while introducing the said RACPS, the
Government considered the recommendations of the
fitment committee and the prevalent system of granting
TBA under the ORSP Rules, 1998 as well as the ACP
under the ORSP Rules, 2008. The RACPS Resolution
acknowledges in its preamble that the CentralW.P.(C) No.28862 of 2023 Page 109 of 141
Government had introduced the MACPS. Therefore,
something similar had to be introduced in the State
Government. Therefore, the RACPS was being
introduced as a Career Advancement Scheme. The
purpose of granting of financial upgradations was the
absence of a promotional avenue to an employee who
has remained over a long period of time in the same
cadre. There are as many as 18 paragraphs in the
RACPS. The grant of earlier benefits was clearly not
seen as bar to receipt of the benefit under the RACPS.
For instance, in Paragraph 18, it is clarified as under:
„Assured Career Progression (ACP) availed under
ORSP Rules, 2008 shall not be taken into account
while considering the RACPS in favour of an
employee.‟ ***‖11.18. The conspectus of the above delineated principles
laid down by the Courts, makes it unambiguous that
the petitioner is entitled to the benefits of RACPS
under the ORSP Rules, 2008.
12. Above analysis would now take this Court to consider
whether the opposite party No.2 is justified in seeking
to recover the amount of revised salary paid claimed to
have been made in excess on account of specious plea
of erroneous calculation?
12.1. This Court on earlier round of litigation being W.P.(C)
No.12359 of 2022, vide Judgment dated 13.01.2023
has taken note of the decision of the Hon‟ble Supreme
Court of India in the case of Rafiq Masih, (2015) 4 SCC
W.P.(C) No.28862 of 2023 Page 110 of 141
334 to consider the grievance of the petitioner that no
recovery is permissible for alleged excess payment of
revised salary being made. In the said reported case it
has been held as follows:
―4. Merely on account of the fact that the release of
these monetary benefits was based on a mistaken
belief at the hands of the employer, and further,
because the employees had no role in the
determination of the employer, could it be legally
feasible, for the private respondents to assert that
they should be exempted from refunding the
excess amount received by them? Insofar as the
above issue is concerned, it is necessary to keep in
mind, that the following reference was made by a
Division Bench [Rakesh Kumar Vrs. State of
Haryana, (2014) 8 SCC 892] of two Judges of this
Court, for consideration by a larger Bench:
‗2. In view of an apparent difference of views
expressed on the one hand in Shyam Babu
Verma Vrs. Union of India, (1994) 2 SCC 521
and Sahib Ram Vrs. State of Haryana, 1995
Supp (1) SCC 18; and on the other hand in
Chandi Prasad Uniyal Vrs. State of
Uttarakhand, (2012) 8 SCC 417, we are of
the view that the remaining special leave
petitions should be placed before a Bench of
three Judges. The Registry is accordingly
directed to place the file of the remaining
special leave petitions before the Hon’ble the
Chief Justice of India for taking instructions
for the constitution of a Bench of threeW.P.(C) No.28862 of 2023 Page 111 of 141
Judges, to adjudicate upon the present
controversy.’
5. The aforesaid reference was answered by a
Division Bench of three Judges on 08.07.2014.
While disposing of the reference, the three-Judge
[State of Punjab Vrs. Rafiq Masih, (2014) 8 SCC
883] Division Bench, recorded the following
observations in para 6:
‗6. In our considered view, the observations
made by the Court not to recover the excess
amount paid to the appellant therein were in
exercise of its extraordinary powers under
Article 142 of the Constitution of India which
vest the power in this Court to pass equitable
orders in the ends of justice.’Having recorded the above observations, the
reference was answered as under:
‗13. Therefore, in our opinion, the decisions of the
Court based on different scales of Article 136
and Article 142 of the Constitution of India
cannot be best weighed on the same grounds
of reasoning and thus in view of the
aforesaid discussion, there is no conflict in
the views expressed in the first two
judgments Shyam Babu Verma Vrs. Union of
India, (1994) 2 SCC 521, Sahib Ram Vrs.
State of Haryana, 1995 Supp (1) SCC 18 and
the latter judgment Chandi Prasad Uniyal
Vrs. State of Uttarakhand, (2012) 8 SCC 417.
14. In that view of the above, we are of the
considered opinion that reference was
W.P.(C) No.28862 of 2023 Page 112 of 141
unnecessary. Therefore, without answering
the reference, we send back the matters to
the Division Bench for their appropriate
disposal.’
6. In view of the conclusions extracted
hereinabove, it will be our endeavour, to lay
down the parameters of fact situations,
wherein employees, who are beneficiaries of
wrongful monetary gains at the hands of the
employer, may not be compelled to refund the
same. In our considered view, the instant benefit
cannot extend to an employee merely on account
of the fact, that he was not an accessory to the
mistake committed by the employer; or merely
because the employee did not furnish any
factually incorrect information, on the basis
whereof the employer committed the mistake of
paying the employee more than what was
rightfully due to him; or for that matter, merely
because the excessive payment was made to the
employee, in absence of any fraud or
misrepresentation at the behest of the employee.
***
12. Reference may first of all be made to the decision
in Syed Abdul Qadir Vrs. State of Bihar, (2009) 3
SCC 475, wherein this Court recorded the
following observation in para 58:
‗58. The relief against recovery is granted by
courts not because of any right in the
employees, but in equity, exercising judicial
discretion to relieve the employees from theW.P.(C) No.28862 of 2023 Page 113 of 141
hardship that will be caused if recovery is
ordered. But, if in a given case, it is proved
that the employee had knowledge that the
payment received was in excess of what was
due or wrongly paid, or in cases where the
error is detected or corrected within a short
time of wrong payment, the matter being in
the realm of judicial discretion, courts may,
on the facts and circumstances of any
particular case, order for recovery of the
amount paid in excess. See Sahib Ram Vrs.
State of Haryana, 1995 Supp (1) SCC 18,
Shyam Babu Verma Vrs. Union of India,
(1994) 2 SCC 521, Union of India Vrs. M.
Bhaskar, (1996) 4 SCC 416, V. Gangaram
Vrs. Director, (1997) 6 SCC 139, B.J. Akkara
Vrs. Govt. of India, (2006) 11 SCC 709,
Purshottam Lal Das Vrs. State of Bihar,
(2006) 11 SCC 492, Punjab National Bank
Vrs. Manjeet Singh, (2006) 8 SCC 647 and
Bihar SEB Vrs. Bijay Bhadur, (2000) 10 SCC
99.’
***
18. It is not possible to postulate all situations of
hardship which would govern employees on the
issue of recovery, where payments have
mistakenly been made by the employer, in excess
of their entitlement. Be that as it may, based on
the decisions referred to hereinabove, we may, as
a ready reference, summarise the following few
situations, wherein recoveries by the employers,
would be impermissible in law:
W.P.(C) No.28862 of 2023 Page 114 of 141
(i) Recovery from the employees belonging to
Class III and Class IV service (or Group C
and Group D service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one
year, of the order of recovery.
(iii) Recovery from the employees, when the
excess payment has been made for a period
in excess of five years, before the order of
recovery is issued.
(iv) Recovery in cases where an employee has
wrongfully been required to discharge duties
of a higher post, and has been paid
accordingly, even though he should have
rightfully been required to work against an
inferior post.
(v) In any other case, where the court arrives at
the conclusion, that recovery if made from
the employee, would be iniquitous or harsh
or arbitrary to such an extent, as would far
outweigh the equitable balance of the
employer’s right to recover.‖12.2. Referring to the above dicta in the case of Rafiq Masih
(supra), in High Court of Punjab and Haryana Vrs.
Jagdev Singh, (2016) 6 SCR 781 it has been clarified as
follows:
―11. The principle enunciated in proposition (ii) above
cannot apply to a situation such as in the present
case. In the present case, the officer to whom the
W.P.(C) No.28862 of 2023 Page 115 of 141
payment was made in the first instance was
clearly placed on notice that any payment found to
have been made in excess would be required to be
refunded. The officer furnished an undertaking
while opting for the revised pay scale. He is bound
by the undertaking.‖12.3. The argument of the learned Additional Standing
Counsel based on above ruling buttressing that the
petitioner having furnished Undertaking that recovery
or adjustment could be made with respect to amount
wrongly paid to him under the ORSP Rules, 2008, the
shelter of Rafiq Masih (supra) could not be made
available, cannot hold water inasmuch as the case of
Jagdev Singh (supra) is with respect to a Judicial
Officer in the rank of Haryana Superior Judicial
Service. Nevertheless, in the instant case, the
petitioner was a Senior Grade Typist in the Group C
category who has already got retired on attaining
superannuation on 31.05.2023.
12.4. The opposite party No.2 while issuing notice
demanding to refund the excess amount paid in Letter
dated 21.08.2023 (Annexure-8) failed to appreciate
that the status of the petitioner. In view of proposition
contained in Rafiq Masih (supra) that “Recovery from
the employees belonging to Class III and Class IV
service (or Group C and Group D service)‖ isW.P.(C) No.28862 of 2023 Page 116 of 141
impermissible, the said Annexure-8 cannot be held to
be tenable.
12.5. This Court wishes to have reference to Sasikala Devi P.
Vrs. State of Kerala, (2023) 3 SCR 857 wherein it has
been held that,―4. The learned counsel for the appellant submitted
that the appellant was appointed as Assistant
Grade-II in the University of Calicut on
04.05.1988. She was promoted as Assistant
Grade-I on 21.12.1989. Thereafter, she was
transferred to M.G. University on 04.02.1992 in
terms of applicable guidelines for inter-university
transfers. On 26.02.1993, she was promoted as
Senior Grade Assistant and thereafter, on
03.03.1999 as Selection Grade Assistant.
5. On 04.11.1999, the appellant applied for inter-
university transfer to Kerala University. As per the
policy for inter-university transfer, the appellant
was placed as the junior- most Assistant in the
entry cadre of Assistant Grade-II, which was the
post on which she was appointed in the year 1988
in the University of Calicut. On 29.09.2001, her
name was included in the list of eligible Assistant
Grade-II who were entitled to be promoted as
Assistant Grade-I. On 22.05.2002, the appellant
was promoted as Assistant Grade-I. Her pay was
fixed on the promotional post. However, on an
audit objection raised, the same was withdrawn.
A writ petition was filed which was allowed by the
Single Bench. However, in appeal filed by the
W.P.(C) No.28862 of 2023 Page 117 of 141
State, the order was reversed by the Division
Bench of the High Court, which is under challenge
in the present appeal. In fact, there was no error in
fixation of pay of the appellants as they were to be
given benefits, which were being given to other
employees on promotion. If not given to the
appellants, it would amount to discrimination.
6. On the other hand, learned counsel for the
respondents submitted that there was apparent
error in fixation of pay of the appellants on the
promotional post. Prior to their transfer in Kerala
University, they had already got three promotions
and their salary was fixed in terms of the
applicable Rules. In inter-university transfer, they
were placed at the bottom of the seniority list of
Assistant Grade-II, however, their pay was
protected. On promotion from Assistant Grade-II to
Assistant Grade-I, they will not be entitled to
upgradation of their salary for the reason that they
were already getting salary of even a higher post
namely Senior Grade Assistant. There is no error
in the order passed by the Division Bench of the
High Court.
***
9. The issue arose when the transferred employees
were promoted in the transferee University. Their
pay was fixed in terms of the normal rule granting
higher pay on promotion. Audit objection was
raised regarding wrong fixation of pay of the
appellants. In the case in hand undisputed fact is
that the appellants had already got three
promotions before they got themselves transferred
W.P.(C) No.28862 of 2023 Page 118 of 141
to Kerala University. The salary drawn by them of
the higher post was protected. It was more than
what was due to Assistant Grade-I, the post on
which they were promoted even after being placed
as Assistant Grade-II at the bottom of the
seniority. Any promotion of a transferred employee
from Assistant Grade-II to Assistant Grade-I will
not entitle her of any benefit of higher scale or
even increment, which is applicable to the
employees normally promoted for the reason that
these special class of employees were already
drawing salary of the higher post which in terms
of the policy for inter-university transfer was
protected, though they were placed at the bottom
of the seniority at the entry level.
10. The argument raised by the learned counsel for
the appellants that there is no bar under Rule 28A
of the Kerala Service Rules, 1959 for grant of such
benefit is merely to be noticed and rejected as the
entire scheme has to be read in totality. Grant of
promotional benefits to the category of persons to
which the appellants belong would mean granting
them double benefit. Firstly, they already got in
the University they were working when they were
promoted as Assistant Grade-I and secondly when
they were promoted on the same post in transferee
University.
11. We do not find any error in the order passed by
the Division Bench of the High Court.
12. At the time of the hearing, it was submitted
that all the appellants who were given the
benefits have retired from service and
W.P.(C) No.28862 of 2023 Page 119 of 141
recoveries were sought to be made from them
though they were not at fault in grant of
those benefits at the time of promotion.
Considering the aforesaid fact and keeping
in view the judgment of this Court in State of
Punjab and Others Vrs. Rafiq Masih (White
Washter) & Ors., (2015) 4 SCC 334, we direct
that no recovery of the amount already paid
to them be effected. However, their pension can
be re-fixed considering the emoluments to which
the appellants were entitled at the time of their
retirement in accordance with the rules‖
12.6. Reference may also be had to Rooplekha Sirsath Vrs.
Public Health and Family Welfare Department, Neutral
Citation: 2024:MPHC-IND:29984, wherein it has been
observed thus:
―4. The petitioner is challenging the recovery of excess
amount of Rs.5,81,867/- paid to him/her on
account of wrong fixation of pay. It is argued that
the aforesaid recovery of excess payment is
contrary to the law. The petitioner is retired
from the post of ANM which is Class-III post.
The recovery of excess amount on account of
wrong fixation of pay is illegal and contrary to the
law laid down by the Apex Court in the case of
State of Punjab Vrs. Rafiq Masih (White Washer),
(2015) 4 SCC 334 . He further submits that there
is no misrepresentation or fault of the petitioner in
fixation of pay.
5. The Full Bench of this Court at Principal Seat,
Jabalpur in identical matters has quashed such
W.P.(C) No.28862 of 2023 Page 120 of 141
recovery orders by judgment dated 06.03.2024
passed in Writ Appeal No.815 of 2017 (State of
Madhya Pradesh and Another Vrs. Jagdish
Prasad Dubey and Another) and connected writ
petitions reported in 2024 SCC OnLine MP 1567, it
has been held in paragraph No.35 as under:
‗Answers to the questions referred
35.
(a) Question No.1 is answered by holding that
recovery can be effected from the pensionary
benefits or from the salary based on the
undertaking or the indemnity bond given by
the employee before the grant of benefit of
pay refixation. The question of hardship of a
Government servant has to be taken note of
in pursuance to the judgment passed by the
Larger Bench of the Hon’ble Supreme Court
in the case of Syed Abdul Qadir case, (2009)
3 SCC 475. The time period as fixed in the
case of Rafiq Masih (supra) reported in
(2015) 4 SCC 334 requires to be followed.
Conversely an undertaking given at the stage
of payment of retiral dues with reference to
the refixation of pay or increments done
decades ago cannot be enforced.
(b) Question No.2 is answered by holding that
recovery can be made towards the excess
payment made in terms of Rules 65 and 66
of the Rules of 1976 provided that the entire
procedures as contemplated in Chapter VIII
of the Rules of 1976 are followed by the
W.P.(C) No.28862 of 2023 Page 121 of 141
employer. However, no recovery can be made
in pursuance to Rule 65 of the Rules of 1976
towards revision of pay which has been
extended to a Government servant much
earlier. In such cases, recovery can be made
in terms of the answer to Question No.1.
(c) Question No.3 is answered by holding that
the undertaking given by the employee at the
time of grant of financial benefits on account
of refixation of pay is a forced undertaking
and is therefore not enforceable in the light of
the judgment of the Hon’ble Supreme Court
in the case of Central Inland Water Transport
Corporation Limited and Another Vrs. Brojo
Nath Ganguly and Another, reported in
(1986) 3 SCC 136 unless the undertaking
is given voluntarily.‖
6. In the case of Shyam Babu Verma Vrs. Union of
India, (1994) 2 SCC 521, the Apex Court while
observing that the petitioners therein were not
entitled to the higher pay scales, had come to the
conclusion that since the amount has already been
paid to the petitioner, for no fault of theirs, the said
amount shall not be recovered by the
respondent/Union of India. The observation made
by the Apex Court in the said case is as under:
‗Although we have held that the petitioners were
entitled only to the pay scale of Rs.330/- —
Rs.480/- in terms of the recommendations of the
Third Pay Commission w.e.f. January 1, 1973 and
only after the period of 10 years, they became
entitled to the pay scale of Rs.330/- — Rs.506/-
W.P.(C) No.28862 of 2023 Page 122 of 141
but as they have received the scale of Rs.330/- —
Rs.560/- since 1973 due to no fault of theirs
and that scale is being reduced in the year
1984 with effect from January 1, 1973, it shall
only be just and proper not to recover any excess
amount which has already been paid to them.’
7. In the case of Sahib Verma Vrs. State of Haryana
(1995) Supp.1 SCC 18, the Apex Court once again
held that although the employee did not possess
the required educational qualification, yet the
Principal granting him the relaxation, had paid the
salary on the revised pay scale. It was further
observed that the said payment was not on
account of misrepresentation by the employee, but
by a mistake committed by the department and,
therefore, the recovery could not have been made.
The relevant observation of the Apex Court is
reproduced as under:
‗Admittedly the appellant does not possess the
required educational qualifications. Under the
circumstances the appellant would not be entitled
to the relaxation. The principal erred in granting
him the relaxation. Since the date of relaxation the
appellant had been paid his salary on the revised
scale. However, it is not on account of any
misrepresentation made by the appellant that the
benefit of the higher pay scale was given to him
but by wrong construction made by the Principal
for which appellant cannot be held to be fault.
Under the circumstances the amount paid till date
may not be recovered from the appellant.’W.P.(C) No.28862 of 2023 Page 123 of 141
8. In the case of Syed Abdul Qadir Vrs. State of Bihar
(2009) 3 SCC 475, the Apex Court held that
recovery of excess payment from a retired
Government servant cannot be made if there
is no mis-representation or fault on the part
of the employee.
9. In view of the aforesaid, the petition is partly
allowed and the impugned recovery order dated
09.02.2016 is hereby quashed.‖
12.7. The Hon‟ble Supreme Court in its judgment in Syed
Abdul Qadir Vrs. State of Bihar, (2009) 3 SCC 475
recognized that the issue of recovery revolved on the
action being iniquitous. Dealing with the subject of the
action being iniquitous, it was sought to be concluded,
that when the excess unauthorised payment is
detected within a short period of time, it would be
open for the employer to recover the same. Conversely,
if the payment had been made for a long duration of
time, it would be iniquitous to make any recovery.
Interference because an action is iniquitous, must
really be perceived as, interference because the action
is arbitrary. All arbitrary actions are truly, actions in
violation of Article 14 of the Constitution of India. The
logic of the action in the instant situation is
iniquitous, or arbitrary, or violative of Article 14 of the
Constitution of India, because it would be almost
impossible for an employee to bear the financial
W.P.(C) No.28862 of 2023 Page 124 of 141
burden, of a refund of payment received wrongfully for
a long span of time. It is apparent, that a Government
employee is primarily dependent on his wages, and if a
deduction is to be made from his/her wages, it should
not be a deduction which would make it difficult for
the employee to provide for the needs of his family.
Besides food, clothing and shelter, an employee has to
cater, not only to the education needs of those
dependent upon him but also their medical
requirements, and a variety of sundry expenses. Based
on the above consideration, if the mistake of making a
wrongful payment is detected within five years, it
would be open to the employer to recover the same.
However, if the payment is made for a period in excess
of five years, even though it would be open to the
employer to correct the mistake, it would be extremely
iniquitous and arbitrary to seek a refund of the
payments mistakenly made to the employee.
12.8. In the case of Staff Nurses when the Government of
Odisha sought to recover excess payment made on
account of erroneous calculation by revising the Pay
Scale and Grade Pay, in a batch of cases being
Madhusmita Swain Vrs. State of Odisha & six others,
O.A. No.2165 of 2014 &c., vide Order dated
14.02.2017, the Odisha Administrative Tribunal,
Bhubaneswar held as follows:
W.P.(C) No.28862 of 2023 Page 125 of 141
―2. The applicants who are presently working as Staff
Nurses under the State-Respondents, have filed
these O.As. with a prayer to quash the
Clarification dated 17.05.2014 at Annexure-5 and
the Order dated 31.05.2014 ·with regard to re-
fixation of revised pay scale of the applicants at
Annexurc-6 and the Order dated 12.09.2014
directing for recovery of excess amount under
Annexure-7 and for issuance of a direction to the-
respondents to pay salary of the applicants as per
fixation of pay under the revised scale at
Annexure-4.
***
7. So far as excess payment to be recovered from the
applicants is concerned, when it is held that the
applicants are entitle to get the benefit of revision
of pay scale after completion of three years of
regular service and the subsequent Clarification
vide Letter dated 17.05.2014 is contrary.to the
Resolution dated 26.06.2013, the order of recover
vide Letter dated 12.09.2014 issued by the CDMO,
Kalahandi pursuant to Clarification Letter dated
17.05.2014 is non-est in the eye of law. Further
the issue of recovery of excess amount paid by the
employer even on wrong fixation of pay has
already been decided by the Hon’ble Apex Court in
the case of State of Punjab and others Vrs. Rafiq
Masih (White Washer) and others, reported in
(2015) 2 Supreme Court Cases (L&S) 33 and
(2015) 4 Supreme Court Cases 334, wherein it has
been held that where payments have mistakenly
been made by the employers to the employees,
excess of their entitlement, recoveries by the
W.P.(C) No.28862 of 2023 Page 126 of 141
employer would be impermissible in law in respect
of employees belonging to Class-III and Class-IV
service. Hence, the Order of recovery vide Letter
dated 12.09.2014 is liable to be quashed.‖Against said Order of the learned Odisha
Administrative Tribunal, challenge being made, a
Division Bench of this Court in State of Odisha Vrs.
Ashokarani Mishra, W.P.(C) No.21772 of 2019 & batch,
vide Order dated 24.06.2021 held as follows:
―12. Once the Anomaly Committee recommended
removal of anomalies and recommended the
revision of the pay scale of regular Staff Nurses,
clearly the revised pay scale would become
applicable from the date of the regularization itself.
The recommendation of the Anomaly Committee
was not to the effect that the revised pay scale
should be made available prospectively as and
when it was notified by the Petitioner Government.
That being the position, when the notification
dated 26th June, 2013 was issued, the rider
inserted by the Petitioner that it would become
payable on completion of 3 years in the regular
pay scale, was unwarranted. That did not reflect
the true intention of the Anomaly Committee.
13. A parallel could be drawn with any other pay
scale revision. For e.g., the National Pay
Commission’s recommendations. There too, the
discrepancies are sought to be removed by
referring the matters to the Anomaly Committee,
and whenever such Anomaly Committee clarifiesW.P.(C) No.28862 of 2023 Page 127 of 141
the issue and recommends refixing the pay scale,
that is given effect to from the date when the
recommendation of the Pay Commission became
effective. In other words, the operation of the
revised pay scale would not be postponed to
different dates, unless expressly stated in the
notification for reasons to be given.
14. In the present case there was no occasion to
postpone the applicability of the revised pay
scales to a later date. The original Government
Resolution issued on 26th June, 2013 was not
intended to make the revised pay scales
applicable only from the date of such Resolution.
15. Further, since the Opposite Parties are in Group-C
posts, the decision in the case of Rafiq Masih
(supra) would apply and no recovery of any
alleged excess payment can be made.
16. Therefore, no grounds have been made out for
interference with the impugned order of the OAT.
The writ petitions are dismissed, but in the
circumstances with no orders as to costs.‖
12.9. In the case of State of Odisha Vrs. Sujata Rani Sahu,
2022 SCC OnLine Ori 950 a Division Bench of this
Court qua holder of isolated or ex-Cadre post made the
following observations:
―20. Therefore, taking into consideration the above
aspects, if opposite party No.1 was granted with a
particular Scale of Pay with Grade Pay and was
allowed to get such benefits, as there was noW.P.(C) No.28862 of 2023 Page 128 of 141
promotional avenue and RACP is the only source
to get higher scale of pay, due to stagnation of
promotional avenue, being holder of an
isolated post, the benefit admissible to her
cannot be denied.
21. Therefore, the Tribunal, having considered the
case of the opposite party No. 1 in proper
perspective, passed the impugned common
order/judgment dated 17.07.2017 observing in
paragraphs 6 and 7 to the following effect:
‗6. Considering the pleadings and the contention
raised by learned counsel for the applicant
and learned standing counsel, it is not
disputed that the post of the applicant as
‗sociologist’ is an ex-cadre/isolated post. The
fixation of pay as per the resolution dt.
6.2.2013 is governed under para 10 and 18
of the said resolution. For better appreciation,
the relevant paras are quoted as follows: ***
7. From para-10, it is clear that an
employee who is a holder of ex-
cadre/isolated post having no
promotional avenue, will get the next
higher grade pay as per the 1st schedule
of ORSP Rules, 2008 and in case the new
Grade Pay correspondence to a different
Pay Band, an employee will get the Pay
Band corresponding to the revised Grade
Pay. In the Clarification dated
20.01.2014, this position has been
clarified. Learned counsel for the applicant
referred to the case of one Bidyut KumarW.P.(C) No.28862 of 2023 Page 129 of 141
Sahoo, Geologist under the Directorate of
Ground Water Survey and Investigation,
Orissa who has been given the benefit of the
scale of the corresponding pay Band-3 of the
Grade pay of Rs.6,600/-. The State
respondents have not disputed the order
passed in favour of Bidut Kumar Sahoo
which is consisted to the stipulated made in
para-10 of RACP Scheme, 2013. The State
respondents have rightly sanctioned the
Grade Pay of Rs.6,600/- as per the Order
dated 11.09.2014 vide Annexure-5. Basin on
the observation of the finance Department,
the said order was withdrawn. The
observation of the Finance Department is not
consistent with the ORSP Rules, 2008 and
the RACPS Rules, 2013 and law is well
settled that an office order cannot supersede
the statutory rules. Accordingly, the grant of
Grade pay of Rs.6,600/- vide Annexure-6 is
to be restored and the applicant will be
entitled to corresponding scale in pay Band-3
of Rs.15,600-39,100/-.’
22. The reasons as assigned by the Tribunal while
granting relief to opposite party No.1 appear to be
clear, cogent and convincing. In view of such
position, this Court does not find any error in the
impugned judgment and Order dated 17.07.2017
passed by the tribunal in O.A. Nos. 416 of 2015 &
3039 of 2015 so as to warrant interference of this
Court, which is accordingly upheld.‖W.P.(C) No.28862 of 2023 Page 130 of 141
12.10. Cumulative effect of judgments clearly indicates
that in all situations of hardship, which would govern
the employees on the issue of recovery, if payments
have mistakenly been made by the employer, in excess
of their entitlement, then there shall be no recovery by
the authority.
Conclusion:
13. As is apparent from the Notice bearing No.179–
E(ii)/42/2022/OAT, dated 16.02.2023 issued by the
Odisha Administrative Tribunal as enclosed to the
counter affidavit of the opposite parties as Annexure-
P/2 series reveals:
―Take notice that in pursuance of Orders of Hon’ble
High Court of Orissa, dated 13.01.2023 passed in
W.P.(C) No. 12359/2022, the Government in G.A. & P.G.
Department have been pleased to constitute a Screening
Committee vide their Order No.3841/Gen.. dated
14.02.2023 for consideration of your grievance as per
the Orders of Hon’ble High Court of Orissa, dated
13.01.2023.
Hence, you are instructed to submit your grievance
before the Screening Committee within three days to
take a decision in the matter.‖
13.1. As already noticed herein above, in pursuance thereof,
the petitioner has submitted his reply dated
W.P.(C) No.28862 of 2023 Page 131 of 141
20.02.2023 in which the grievance has been spelt out
with the following opening and ending words:
―the moot issue involved in the cases as to whether
there was any illegality or irregularity in the earlier
Order dated 06.03.2014 of the Odisha Administrative
Tribunal, Bhubaneswar passed by the Registrar
allowing the benefits of 2nd RACP in the appropriate
Scale and Grade Pay. ***I hope and trust your honour will pass a judicious order
by allowing me to draw the benefits of Revised Assured
Career Progression as per the earlier order of the
Odisha Administrative Tribunal in the 2nd Revised
Assured Career Progression and also direct the
Nodal Officer to re-fix my pay under 3rd Revised
Assured Career Progression as per my entitlement
in the Grade Pay of Rs.4,600/-.‖13.2. Reading of said reply does not reveal that the
petitioner is aggrieved by Modified Assured Career
Progression Scheme as laid down under the Odisha
Revised Scales of Pay Rules, 20179.
9 Rules 13 to 16 of the Odisha Revised Scales of Pay Rules, 2017, which came
into force with effect from 01.01.2016 by virtue of Rule 1(2) of said Rules,
read thus:
―13. Modified Assured Career Progression Scheme (MACPS).–
Modified Assured Career Progression Scheme shall come into effect
from the 1st day of January, 2016 with the implementation of these
rules to address the stagnation of Government employee. The Scheme
is as is as follows:
(i) There shall be three financial up-gradations under the MACPS, counted
from the direct entry grade on completion of 10, 20 and 30 years of
service respectively. An employee before getting MACP if avails first
promotion, he shall not be considered for 1st MACP. Similarly after
availing 1st MACP, if he gets 1st Promotion, this shall be covered as 1st
financial upgradation under the scheme. The Second financial
W.P.(C) No.28862 of 2023 Page 132 of 141
upgradation under MACP shall be 10 years after the 1st promotion or
20 years whichever is earlier. Second promotion prior to that, shall
cover the 2nd MACP. The third financial upgradation will be further 10
years from 2nd promotion or 2nd MACP whichever is earlier. The 3rd
MACP stands covered if the 3rd promotion availed prior to the above;
(ii) The MACPS envisages merely placement in the immediate next higher
Level in the Pay Matrix. Thus, the Level at the time of financial up-
gradation under the MACPS can, in certain cases where regular
promotion is not between two successive grades, be different than
what is available at the time of regular promotion. In such cases, the
higher Level attached to the next promotion post in the hierarchy of the
concerned cadre will only be at the time of regular promotion;
(iii) The financial up-gradations under the MACPS would be admissible up-
to the Level-14 in the Pay Matrix;
(iv) There shall be a Screening Committee to decide the eligibility of the
persons for up-gradation under MACPS. The Screening Committee shall
follow a time schedule and meet twice in a financial year, preferably in
the first week of January and first week of July every year for advance
processing of the cases maturing in that half year. Accordingly, cases
maturing during the first-half, i.e. April to September of a particular
financial year shall be taken up for consideration by the Committee in
the first week of January. Similarly, the Screening Committee meeting
in the first week of July shall process the cases that would be maturing
during the second-half, i.e. October to March of the same financial year.
Authority empowered to constitute Screening Committee for RACPS
shall also constitute Screening Committee for MACPS;
(v) Benefit of pay fixation available at the time of regular promotion shall
also be allowed at the time of financial up-gradation under the scheme.
There shall, however, be no further fixation of pay at the time of regular
promotion. Fixation benefits availed under Time Bound Advancement
(TBA) Scale under ORSP Rules, 1998, Assured Career Progression
(ACP) and Revised Assured Career Progression Scheme (RACPS) under
ORSP Rules, 2008 would be adjusted while considering financial up-
gradation under MACPS;
(vi) Promotions earned in the post carrying same Level in the promotional
hierarchy as per recruitment rules shall be counted for the purpose of
MACPS. In cases, where the promotional post carries the same Level in
their recruitment rules, then the employee in financial up-gradation
under MACP Scheme shall move to the next immediate higher Cell
instead of next higher Level;
(vii) If a financial up-gradation under the MACPS is deferred and not
allowed after 10 years in a Level, due to the reason of the employees
being unfit or due to pendency of departmental proceedings, or judicial
proceedings this would have consequential effect on the subsequent
financial up-gradation which would also get deferred to the extent of
delay in grant of first financial up-gradation. The approach would be
same for similar eventualities arising at 20 or 30 years as the case
may be;
(viii) In the matter of disciplinary or judicial proceedings, grant of benefit
under the MACPS shall be subject to rules governing normal promotion.
Such cases shall, therefore, be regulated under the provisions of the
OCS (CCA) Rules, 1962 and the laws under which the judicial
proceedings are instituted, as the case may be;
W.P.(C) No.28862 of 2023 Page 133 of 141
(ix) On grant of financial up-gradation under the scheme, there shall be no
change in the designation, classification or higher status. However,
financial and certain other benefits which are linked to the pay drawn
by an employee such as HBA, allotment of Government accommodation
shall be permitted;
(x) The MACPS contemplates merely placement on personal basis in the
immediate higher Level/grant of financial benefits only and shall not
amount to actual functional promotion of the employees concerned.
Therefore, no reservation orders shall apply to the MACPS. However,
the rules of reservation in promotion shall be ensured at the time of
regular promotion. For this reason, it shall not be mandatory to
associate members of SC/ST in the Screening Committee meant to
consider cases for grant of financial upgradation under the Scheme;
(xi) Financial up-gradation under the MACPS shall be purely personal to
the employee and shall have no relevance to his position of seniority in
the grade. As such, there shall be no stepping up of pay/ antedation of
increment between senior and junior after regulation of pay under
MACPS;
(xii) Pay drawn in the Level allowed under the MACPS shall be taken as the
basis for determining the terminal benefits in respect of the retiring
employee;
(xiii) If a regular promotion in due course is refused by the employee before
becoming entitled to a financial up-gradation, then there shall be no
financial up-gradation under MACPS as the employee has not been
stagnated due to lack of promotional opportunity. If, however, financial
up-gradation has been allowed due to stagnation and the employee
refuses the subsequent promotion, it shall not be a ground to withdraw
the financial up-gradation. He shall, however, not be eligible to be
considered for further financial upgradation till he agrees to be
considered for promotion again and the next financial upgradation
shall also be deferred to the extent of period of debarment due to such
refusal. Similarly, refusal of MACP is automatically construed as
refusal of promotion in the same manner;
(xiv) Employees on deputation need not revert to the parent Department for
availing the benefit of financial up-gradation under MACPS if he is
drawing pay admissible to his parent post;
(xv) Placement of an employee in the appropriate Level under MACPS shall
depend upon the number of promotions and up-gradations under
RACPS already availed. As such, the applicable Level for fixation of
pay under these rules shall be the Level of the post the employee holds
or his entitlement under MACPS whichever is higher;
(xvi) Up-gradation of post in a cadre shall not be considered as an up-
gradation under the MACPS;
(xvii) There shall be no further financial up-gradation under MACPS, if an
employee has already availed three financial up-gradations under
RACPS/Promotion.
(xviii) If there is no fixation of pay on promotion account of availing benefits
under MACPS, the usual date of increment shall be retained;
(xix) All promotions within or across the cadre supported by Rules shall be
considered as up-gradations under MACPS. An employee joining a post
as an outsider will be counted afresh in that post for MACP benefits;
W.P.(C) No.28862 of 2023 Page 134 of 141
(xx) Financial up-gradation in favour of an employee under MACPS shall
not be considered if he is found unsuitable for promotion or does not
fulfil the conditions for promotion;
Note.– The Revised Assured Career Progression Scheme (RACPS) shall cease
to operate on w.e.f. 01.01.2016. The operation period of RACPS for an
employee is from 1.1.2013 to 31.12.2015 or till the date he ceases to
draw pay ORSP Rule, 2008.
Illustrations.–
(a) If a Government servant (Jr. Clerk) in Level-4 gets his next regular
promotion (Sr. Clerk) in Level-7 on completion of 8 years of service and
then continues in the same Level for further 10 years without any
promotion then he would be eligible for 2nd financial up-gradation
under the MACPS in the next higher Level i.e. Level-8 after completion
of 18 years (8+10). After getting 2nd financial up-gradation under
MACPS, if he continues in the same Level for further 10 years without
any promotion then he would be eligible for 3rd financial up-gradation
under this scheme in the next higher Level i.e. Level-9 after completion
of 28 years (8+10+10).
(b) If a Government servant (Jr. Clerk) in Level-4 gets his 1st promotion (Sr.
Clerk) in Level-7 on completion of 8 years of service and then gets 2nd
promotion (Head Clerk) in Level-9 on completion of 7 years from the
date of last promotion i.e. after completion of 15 (8+7) years of service
from the date of entry as Jr. Clerk and continues in the same Level for
further 10 years without any promotion then he would be eligible for
3rd financial up-gradation under the MACPS in the next higher Level
i.e. Level-10 after completion of 25 years (8+7+10).
(c) If a Government servant (Jr. Clerk) in Level-4 gets his 1st promotion (Sr.
Clerk) in Level-7 on completion of 8 years of service and then gets 2nd
financial up-gradation under the MACPS in Level-8 on completion of 18
(8+10) years of service and thereafter, is promoted to Head Clerk i.e.
2nd promotion in hierarchy in Level-9 on completion of 21 years of
service which is after 3 years of getting 2nd financial up-gradation
under the MACPS then no pay shall be fixed on such promotion except
fitting of the pay in the appropriate Cell of the Level-9. If there is no
such Cell exact to the amount, then the pay shall be fitted in the next
above Cell. In this eventuality, the next date of increment shall be after
12 months from the date of last increment sanctioned although the
employee moves to a higher Level. But, if no promotion is given after
Head Clerk then the 3rd financial up-gradation under the MACPS shall
be admissible in Level-10 after 10 years from the grant of 2nd financial
up-gradation under this scheme i.e. after completion of 28 (8+10+10)
years of service from the date of entry into the post of Jr. Clerk instead
of 10 years from the date of promotion to Head Clerk.
14. Excess payment to be recovered.–
Where in the course of fixation of pay under these rules, any amount
drawn or received as pay by any Government servant under any rule
is found to be in excess of the amount payable to him under these
rules, the excess amount so drawn or received shall be recoverable
from such Government servant or from his recoverable pensionery
benefits for which he shall submit an undertaking as specified in the
Fifth Schedule.
15. Overriding effect of these rules.–
W.P.(C) No.28862 of 2023 Page 135 of 141
13.3. The narration of facts, particularly from Annexure-B
forming part of the recommendation of the Screening
Committee in the Meeting held on 28.02.2023 reveals
that the petitioner having joined as Junior Grade
Typist on 04.10.1990 was promoted to the post of
Senior Grade Typist on 01.02.2019 and has already
availed the financial benefit under the RACP Scheme
(obviously, under the ORSP Rules, 2008 as he
completed 20 years of service on 03.10.2010). Since
the Odisha Revised Scales of Pay Rules, 2017 along
with Modified Assured Career Progression Scheme
(Rule 13 thereof) has come into force with effect from
01.01.2016, there cannot be any dispute that the
fixation of Scales of Pay and Grade Pay would accrue
by virtue of the ORSP Rules, 2008, so far as 2nd RACP
is concerned.
The provisions of the Orissa Service Code, the Orissa Revised Scales of
Pay (for Non-Gazetted Officers) Rules, 1974, the Orissa Revised Scales
of Pay (for Gazetted Officers) Rules, 1974, the Orissa Revised Scales of
Pay Rules, 1981, the Orissa Revised Scales of Pay Rules, 1985, the
Orissa Revised Scales of Pay Rules, 1989, the Orissa Revised Scales of
Pay Rules, 1998 and the Orissa Revised Scale of Pay Rules, 2008,
shall not, save as otherwise provided in these rules, apply to cases
where pay is regulated under these rules, to the extent they are
inconsistent with these rules.
16. Power to relax.–
Where the Finance Department is satisfied that the operation of all or
any of the provisions of these rules cause/causes undue hardship in
any particular case, they may, in the public interest, by order, dispense
with or relax the requirements of all or any such provisions to such
extent and subject to such conditions as may be deemed necessary for
dealing with the case in a just and equitable manner.‖
W.P.(C) No.28862 of 2023 Page 136 of 141
13.4. From the above it is unambiguous that the present
case is confined to claim and entitlement of the
petitioner as regards the 2nd RACP under the ORSP
Rules, 2008.
14. Present case is a case where against the unilateral
decision of the opposite parties to revise the Pay Scale
by reducing the Grade Pay of promotional post on the
specious plea of Senior Grade Typist is not a feeder
grade for the promotional post of Senior Assistant has
been interfered with by this Court by Judgment dated
13.01.2023 in W.P.(C) No.12359 of 2022. However,
scope being given to the Nodal Officer to apply his
conscientious mind by placing material before the
Screening Committee, it is found that no reason has
been assigned by discussing points raised by the
petitioner, thereby there has been flagrant violation of
principles of natural justice manifest on the record.
14.1. The discussions made in the foregoing paragraphs,
reasons ascribed thereto supported by the settled
principles enunciated by the Hon‟ble Supreme Court of
India and explained in different cases by this Court as
well as other High Courts lead to irresistible
conclusion that the opposite parties have misdirected
themselves in appropriately considering the grievance
W.P.(C) No.28862 of 2023 Page 137 of 141
of the petitioner with regard to claim of RACPS under
the ORSP Rules, 2008, while passing the impugned
order. Therefore, there is no infirmity in the order
dated 06.03.2014 under Annexure-4 allowing the
benefit of RACP and fixation thereof.
14.2. The opposite parties should have considered the plight
of the petitioner, who was an employee belonging to
Group-C category and taking note of the fact that the
petitioner has since been retired from service on
31.05.2023, there shall be no recovery of alleged
excess payment of salary as per Letter dated
21.08.2023 (Annexure-8) in view of principles
propounded in the decisions as referred to above.
Furthermore, from the Annexure-B appended to Office
Order dated 30.05.2023 it transpires that the recovery
is sought to be made by revising/modifying Pay of the
petitioner by computation since 01.01.2013 till
01.10.2022 (for around 10 years). It would cause
hardship if the terms of Letter dated 21.08.2023 is
given effect to. The case of Rafiq Masih, (2015) 4 SCC
334 has been followed in Thomas Daniel Vrs. State of
Kerala, 2022 SCC Online SC 536 wherein it has been
held,
W.P.(C) No.28862 of 2023 Page 138 of 141
―Coming to the facts of the present case, it is not
contended before us that on account of the
misrepresentation or fraud played by the appellant, the
excess amounts have been paid. The appellant has
retired on 31.03.1999. In fact, the case of the
respondents is that excess payment was made due to a
mistake in interpreting Kerala Service Rules which was
subsequently pointed out by the Accountant General.‖
14.3. When the present case is examined, it is akin to the
above and under the aforesaid premises, the
conclusion is, without any doubt in mind, that the
Order dated 30.05.2023 of the Nodal Officer
(Annexure-7) acceding to the decision of the Screening
Committee taken in the Meeting held on 28.02.2023
denying the benefit of RACPS under the ORSP Rules,
2008 cannot be sustained and accordingly warrants
interference.
14.4. It is not controverted either in the reply or otherwise
that the benefit stated to have been erroneously
conferred to the petitioner lasted for long period. Being
so, when concededly the mistake was on the part of
the opposite parties and the so-called “Undertaking”
was involuntary in nature. In view the ratio laid down
in Rafiq Masih (supra) and Thomas Daniel (supra) read
along with other cases referred to in the foregoing
paragraphs, the Letter dated 21.08.2023 issued by the
W.P.(C) No.28862 of 2023 Page 139 of 141
Officer-on-Special Duty, Odisha Administrative
Tribunal vide Annexure-8 seeking to recover an
amount of Rs.3,75,255/- alleged to have been drawn
and disbursed in favour of the petitioner during the
“service period” can be said to be on jejune grounds,
which deserves indulgence.
15. In the result, on the discussions made above, for the
reasons ascribed hitherto and in the light of the legal
position with ratio of the decisions referred to above,
this Court sets aside the Order dated 30.05.2023 of
the Nodal Officer (Annexure-7) and quashes the Letter
dated 21.08.2023 issued by the Officer-on-Special
Duty, Odisha Administrative Tribunal (Annexure-8).
15.1. As a sequel to the above, the opposite parties shall
refix the claim of the petitioner as at Annexure-4 and
extend all such consequential benefits including the
retirement benefits in consonance with the
observations made above.
15.2. Needless to observe that recovery, if any, made from
the petitioner shall be refunded forthwith.
15.3. It is hoped that the above exercise shall be completed
within a period of three months from date.
W.P.(C) No.28862 of 2023 Page 140 of 141
16. With the aforesaid observation and direction, the writ
petition stands disposed of, but in the circumstances
there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
High Court of Orissa, Cuttack
The 2nd January, 2025//MRS/Laxmikant/Suchitra
Signature Not Verified
Digitally Signed
Signed by: SUCHITRA BEHERA
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2025 18:30:05
W.P.(C) No.28862 of 2023 Page 141 of 141