Orissa High Court
Sri Prasanna Kumar Gochhayat vs State Of Odisha on 30 January, 2025
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.16778 of 2021
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Sri Prasanna Kumar Gochhayat
Aged about 56 years
Son of Dhuna Chandra Gochhayat
at present Tally Clerk,
Office of Paradip Mining Office
Madhuban
O.M.C. Colony, Paradip
Resident of, At: Nuadiha
P.O.: Mahimadeipur
Via: Rahama
District: Jagatsinghpur. … Petitioner.
-VERSUS-
1. State of Odisha
Represented through
its Secretary to Government,
Steel & Mines Department,
Secretariat Building, Odisha
Bhubaneswar.
2. Director of Mines, Odisha,
Bhubaneswar.
3. Deputy Director of Mines,
Jajpur Road.
W.P.(C) No.16778 of 2021 Page 1 of 87
4. Secretary to Government,
Finance Department,
Secretariat Building, Odisha
Bhubaneswar.
5. Paradip Mining Office,
Madhuban O.M.C. Colony,
Paradip,
District: Jagatsinghpur. … Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Susanta Kumar Dash,
Ananga Kumar Otta,
Swetlana Das, Asutosh Sahoo
and Prabin Das, AdvocatesFor the Opposite Parties : Ms. Saswata Patnaik,
Additional Government AdvocateP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 30.08.2024 :: Date of Judgment : 30.01.2025
J UDGMENT
MURAHARI SRI RAMAN, J.–
Legality of Office Order No.559/Mines, dated
07.04.2021 issued by the Deputy Director Mines,
Jajpur Road Circle, Jajpur Road (Annexure-6)
cancelling the financial upgradation extended vide
Office Order No.455/Mines, dated 16.03.2017 (1st
Revised Assured Career Progression in terms of theW.P.(C) No.16778 of 2021 Page 2 of 87
Odisha Revised Scales of Pay Rules, 2008) with effect
from 01.01.2013 and Office Order No.2036/Mines,
dated 06.11.2017 (Pay Fixation) and revising the same
in pursuance of Letter No. MII(gg)-1/20– 2472/DM,
dated 18.03.2021 (Annexure-4) issued by the Director
of Mines, Odisha, being questioned on the touchstone
of decisions rendered vide Order dated 03.05.2017 in
Additional Chief Secretary to Government and Others
Vrs. Sunil Pattanayak and Another, W.P.(C) No.3460 of
2017; and State of Orissa Vrs. Bihari Lal Barik, W.P.(C)
No.2831 of 2016, disposed of on 27.08.20161, the
petitioner has approached this Court by way of filing
this writ petition invoking extraordinary jurisdiction
under Articles 226 and 227 of the Constitution of
India with the following prayer(s):
“The petitioner therefore prays that your Lordships may
graciously be pleased to quash Annexure-4 & 6 and
direct the opposite parties to allow the Grade Pay which
was extended to the petitioner under Annexure-2 taking
into Annexure-3 and decision of this Hon‟ble Court in
W.P.(C) No.2831 of 2016 and W.P.(C) No.3460 of 2017.
And pass such order/directions of this Hon‟ble
Court may deem fit and proper.
And for this act of kindness, the petitioner as in
duty bound shall ever pray.”
1 State of Odisha Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, disposed of by
Judgment dated 27.06.2016; reported as State of Odisha Vrs. Bihari Lal, 2016
SCC OnLine Ori 333.
W.P.(C) No.16778 of 2021 Page 3 of 87
Facts:
2. The petitioner, initially directed to be appointed as
Check Gate Clerk in view of provisions of the Odisha
Civil Services (Rehabilitation Assistance) Rules, 1990,
vide Letter No.122/XV-a-5/95/DMG, dated
01.01.1996, by virtue of modified Letter bearing
No.438/XV-a/6/96/DMG, dated 05.01.1996, was
directed by the Director of Mining and Geology to be
given appointment to work as “Tally Clerk”.
Accordingly, he was appointed as “Tally Clerk” in the
year 1996 in the Office of the Deputy Director of
Mines, Jajpur Road Circle, Jajpur, vide Order
No.258/Mines, dated 11.01.1996 with scale of pay
Rs.950-20-1150-EB-25-1500, which is reproduced
hereunder:
“Office of the Deputy Director Mines :
Jajpur Road Circle : Jajpur Road
No.258/Mines. Dated 11.01.1996.
In pursuance of DM.G (O) Letter No.122 dated
02.01.1996 & Letter No.435/DMG(o) dated 05.01.1996,
Sri Prasanna Kumar Gochhayat, son of D.C. Gochhayat,
Retd. Tally Clerk, Village: Nuadiha, P.O.:
Mahimadeipur, Via: Rahama, District: Jagatsinghpur is
hereby appointed as Tally Clerk under the
rehabilitation assistance scheme in the scale of pay
950-20-1150-E.E.-25-1500 with usual D.A. as
admissible under Rule from time to time.
W.P.(C) No.16778 of 2021 Page 4 of 87
The appointment is purely temporary and can be
terminated at any time without any notice or assigning
any reason thereof.
He should join the office of the under signed within 15
days from the date of issue of this letter failing which
the appointment order may be cancelled.
Deputy Director of Mines,
Jajpur Road.
Memo No.259/Mines. Dated 11.01.1996.
Copy to Sri Prasanna Kumar Gochhayat, C/o: Dhuna
Chandra Gochhayat, Village: Nuadihi, P.O.:
Mahimadeipur, Via: Rahama, District: Jagatsinghpur for
information. He is directed to join in the office of the
undersigned as per conditions given above. He should
submit the following documents at the time or joining
positively.***”
2.1. Since the Revised Assured Career Progression Scheme
(for short, “the RACP Scheme”) came into force with
effect from 01.01.2013 by the Government of Odisha
in Finance Department vide Memo No.1738-PCC(A)-
37/2013/F dated 20.01.2014 for financial up-
gradation of the State Government employees under
the RACP’s counted from the direct entry grade on
completion of 10/20/30 years of service in a single
Cadre in absence of promotion, the petitioner was
allowed the benefit of 1st RACP with revised pay in Pay
Band-1, Rs.5,200/- — Rs.20,200/- with Grade Pay of
Rs.2,800/- with effect from 01.01.2013 vide Office
W.P.(C) No.16778 of 2021 Page 5 of 87
Order No.455/Mines, dated 16.03.2017 and 2nd RACP
in Pay Band-2, Rs.9,300/- — Rs.34,800/- with Grade
Pay of Rs.4,200/- with effect from 12.01.2016 vide
Order No.2036/Mines, dated 06.11.2017 in terms of
the Odisha Revised Scales of Pay Rules, 2013 (for
convenience, “ORSP Rules, 2013”) on completion of 10
years and 20 years of continuous service as on
11.01.2006 and 11.01.2016.
2.2. So far as it related to the present petitioner, the
Statement showing the fixation of pay under the
RACPS (Annexure-2) is extracted hereunder:
“Statement showing the fixation of pay under
ACPS/RACPS of employees of
Office of the Deputy Director Mines,
Jajpur Road Circle.
Sl Name of the Option Under- Existing Grant of Date of Incremen Re
No. employee exerc- taking Pay Up- Next -tal Pay ma
with ised furni- and gradation Increm- sanction- rks
designation Yes/ shed Grade Pay under ent ned after
No Yes/N ACPS/ up-
o RACPS gradatio
with n
effective
date
1 2 3 4 5 6 7 8 9
** *** *** *** *** *** *** *** ***
3 Sri Yes Pay-8520/- 1st ACPS 01.01. Pay Ne
Prasanna GP-1900 (15 years) 2012 Rs.9170 xt
Kumar as on Pay +GP da
Gochhayat 12.01.2011 Rs.8840 + 1900 in te
(Tally in the Scale GP the of
Clerk) of Pay PB- Rs.1900 Scale of Inc
1, w.e.f Pay PB- re
5200/2020 01.01.2011 1, 5200- me
0 GP-1900. in the Scale 20200 nt
of Pay PB1, GP 01.
5200- 1900 01.
W.P.(C) No.16778 of 2021 Page 6 of 87
20200 GP- 20
Rs.1900 13
01.01. Pay -
2013 Rs.9510
+ GP
1900 in
the
Scale of
Pay PB-
1, 5200-
20200
GP
1900
1st RACPs 01.01. Pay Ne
(10 years) 2014 Rs.9880 xt
Pay + GP da
Rs.9510+G 2800 in te
P Rs.2800 the of
w.e.f. Scale of inc
01.01.2013 Pay PB- re
in the Scale 1, 5200- me
of Pay PB1, 20200 nt
5200- GP 01.
20200 GP 2800 01.
Rs.2800 w.e.f.01 20
.01.201 15
4
01.01. Increme -
2015 nt of
Pay
Rs.1026
0+ GP
2800 in
the
Scale of
Pay PB-
1, 5200-
20200/-
GP-
2800/-
2nd RACPs 12.01. - -
(20 years) 2017
Pay
Rs.10660+
GP
Rs.4200
w.e.f.
12.01.2016
in the Scale
of Pay PB2,
9300-
W.P.(C) No.16778 of 2021 Page 7 of 87
34800 GP-
Rs.4200
** *** *** *** *** *** *** *** ***
2.3. An information being sought for under the Right to
Information Act, 2005, with respect to promotional
avenues available for “Check Gate Clerk”/”Tally
Clerk”, the following data have been supplied by the
Public Information Officer-Directorate of Mines,
Odisha, Bhubaneswar, vide Letter No.4930/DM, dated
26.05.2014 (Annexure-3):
“In absence of approved Cadre Rules, the Check Gate
Clerk/ Tally Clerk have been considered for promotion
to the posts of Weigh Bridge Supervisor and Weigh
Bridge Supervisors to the post of Transport Supervisor.
Current Scale of Pay:
1. Weigh Bridge Supervisor PB-1 Rs.5,200/- —
Rs.20,000/- GP Rs.2,800/-
2. Transport Supervisor PB-2 Rs.9,300/- —
Rs.34,800/- GP Rs.4,200/-”
2.4. Notwithstanding such information being provided way
back in the year 2014, the Director of Mines, Odisha,
Bhubaneswar vide Letter No. MII (gg)-1/20/2472/DM,
dated 18.03.2021 (Annexure-4) instructed
subordinates to cancel previous orders following
Paragraph 18 of the Finance Department Resolution
W.P.(C) No.16778 of 2021 Page 8 of 87
No.3560/F., dated 06.02.2013 while allowing the
RACP to the employees up to 31.12.2015 and Rule 13
of the Odisha Revised Scales of Pay Rules, 2017
(“ORSP Rules, 2017”, for brevity) on or after
01.01.2016. The said Letter dated 18.03.2021 reads as
under:
“Directorate of Mines, Odisha,
Bhubaneswar
No.MII (gg)-1/20/2472/DM., Dated 18.03.2021From
Debidutta Biswal, IFS,
Director of Mines, Odisha,
Bhubaneswar.
To
The Joint Director of Mines, Joda
The Deputy Director of Mines,
Koira/Rourkela/Talcher/Koraput/
Sambalpur/Jajpur Road
The Mining Officer,
Baripada/Bhawanipatna/Phulbani/
Keonjhar/Balangir/Cuttack/BerhampurSub.: Strict adherence and implementation of Finance
Department Resolution No., Orders & clarifications
while sanctioning RACPs in favour of District level
Ex-cadre posts of Check Gate Clerks & Tally
Clerks under your administrative control.
Sir,
With reference to the captioned subject, it is observed
that while allowing financial up-gradations in favour of
W.P.(C) No.16778 of 2021 Page 9 of 87
District Cadre (ex-cadre) posts of Check Gate
Clerks & Tally Clerks etc., you have not adhered into
the guidelines of Finance Department issued from time
to time such as Resolution No.3560/F, dated
06.02.2013, Clarification No.1738/GF., dt.20.01.2014
& Resolution No.1417/F., dated 17.01.2015 to avoid
stagnation in the both Cadre & Ex-Cadre posts
scrupulously. You have allowed RACPs/MACPs to the
Check Gate Clerks and Tally Clerks presuming the
same as cadre based, which is irregular.
The post of Tally Clerk/CGC/Weigh Bridge
Supervisor as well as Transport Supervisor are
still remaining as ex-cadre. Further filling of the post
of Weigh Bridge Supervisor and Transport Supervisor
are coming under the purview of Director of Mines as
per prevailing practice.
In general terms, it is an admitted fact that there
is no bar to consider promotion from an ex-cadre
post to another ex-cadre post basing on fulfilment
of criteria after being decided, and the employee
can be allowed promotion as per Finance
Department Resolution No.1417/F., dated
17.01.2015.
The post of Check Gate Clerk/Tally Clerk/Weigh Bridge
Supervisor and Transport Supervisor are not
hierarchically one above other allowing the employee
concerned to go for such posts on promotion because
the post of Check Gate Clerk/Tally Clerk are not coming
under Recruitment Rules to be treated as Cadre posts.
The RACP Rule emphasizes on Cadre only, i.e.,
through Recruitment Rules. The benefit under the
Scheme shall be permissible on the basis of theW.P.(C) No.16778 of 2021 Page 10 of 87
promotional post available in Cadre/Recruitment Rules,
otherwise the same shall be treated as an isolated post
and the RACP benefits of the employee appointed on the
above recruitment post shall be determined in terms of
Finance Department Resolution No.1417/F., dated
17.01.2015.
After examining the Service Books of Tally Clerks and
Check Gate Clerks it is noticed by the Audit that
financial upgradations allowed by the Circle Heads are
in violation of the Finance Department Guidelines
mentioned in the foregoing paragraph which should be
rectified as follows immediately in a rational way.
Starting After completion After completion After completion
Check Gage of 10 years of of 20 years of of 30 years of
Clerk / Tally uninterrupted uninterrupted uninterrupted
Clerk service service service
GP- Rs.1,900 GP Rs.2,000 GP Rs.2,200 GP Rs.2,400
(Pre-revised
Scale of Pay)
Hence you are directed to cancel the previous order
(allowing the same as Cadre based) and to allow RACP
to the above extent immediately and compliance be
reported by 7th April, 2021 at the latest.
While considering the above, Rule 18 of Finance
Department Resolution No.3560/F., dated 06.02.2013
should be followed strictly while allowing the same in
favour of the employees up to 31st December, 2015 and
the incumbents those have due to get the benefits on or
after 01.01.2016 should be followed as per sub-rule (v)
of Rule 13 of ORSP Rules, 2017.
Accordingly, the Original Service Books of the
employees concerned of respective Circle Offices asW.P.(C) No.16778 of 2021 Page 11 of 87
detailed below are returned herewith for further
compliance at your end.
*** *** *** ***
13. Sri Prasanna Ku. Gochhayat, Tally Clerk O/o. DDM, Jajpur Road
*** *** *** ***This may be treated as “most urgent”
Encl. As above Yours faithfully
Director of Mines, Odisha"
2.5. Objecting to such action, the petitioner had
approached this Court by way of filing writ petition,
being W.P.(C) No.12411 of 2021, which was disposed
of on 05.04.2021 with the following order:
“***
This writ petition involves the following prayer:
„The petitioner therefore prays that your lordships may
graciously be pleased to quash Annexure-4 taking into
Annexure-3 and direct the Opp. Parties to allow the Grade
Pay which was extended to the petitioner under Annexure-
2. And pass such order/directions as this Hon‟ble Court
may deem fit and proper. And for this act of kindness, the
petitioner as in duty bound shall ever pray.‟
In his challenge to Annexure-4, Sri Pati, learned counsel
for the petitioner contended that the direction contained
in Annexure-4 so far it relates to petitioner clearly
opposes the decision of the authority at Annexure-3, at
pages 13 and 14, where similarly situated persons
being benefited with higher Grade Pay. It is in this view
of the matter and as a decision is required to be taken
by the opposite party no.2, this writ petition stands
disposed of with a direction to the opposite party no.2 to
W.P.(C) No.16778 of 2021 Page 12 of 87
treat the writ petition as an objective to Annexure-4 so
far it relates to petitioner and take decision as
appropriate involving the petitioner and also taking into
consideration the development through Annexure-2
within a period of ten weeks from the date of
communication of this order along with copy of this writ
petition by the petitioner.
Till a decision is taken, in the event Annexure-4 has not
been given effect to, the same may not be given effect
to.”
2.6. The Deputy Director of Mines, Jajpur Road Circle,
Jajpur vide Office Order No.559/Mines, dated
07.04.2021 cancelled the Office Order dated
16.03.2017 (1st RACP) and 06.11.2017 (Pay fixation)
with effect from 01.01.2013 and downgraded the
Grade Pay of Rs.4,600/- to Rs.2,200/- under
Annxure-6. The relevant portion of said Order so far as
relevant for the present petitioner reads as follows:
“Office of the Deputy Director of Mines,
Jajpur Road Circle, Jajpur Road
Office Order No.559/Mines Dated 07.04.2021In pursuance of Letter No. MII (gg) 1/20-2472/DM,
dated 18.03.2021 of Director of Mines, Odisha,
Bhubaneswar the financial up-gradations extended to
the Check Gate Clerks and Tally Clerks are hereby
cancelled and revised the following manner.
***
W.P.(C) No.16778 of 2021 Page 13 of 87
6. Sri Prasanna Kumar Gochhayat, Tally Clerk
The financial up-gradation extended in Sri
Prasanna Kumar Gochhayat, Tally Clerk vide this
Office Order No.455/Mines, Dated 16.03.2017
(1st RACPs) and Order No.2036/Mines Dated
06.11.2017 (pay fixation) is cancelled and revised
w.e.f.01.01.2013.
01.01.2013 Pay Rs.9510/- 1st RACPS under
+G.P.2000/- Rule 13(2) of ORSP
Rules, 2008
01.01.2014 Pay Rs.9860/- + Increment
G.P.2000/-
01.01.2015 Pay Rs.10,220/- G.P. Increment
Rs.2000/-
01.01.2016 Pay Rs.10,590/- + Increment
G.P.Rs.2000/-
01.01.2016 Pay Rs.33,000/- ORSP Rules, 2017
Level-5, Cell-15
12.01.2016 Pay Rs.33,700/- 2nd RACPS under
Level-6, Cell-13 Rule 13(2) of ORSP
Rules, 2008
01.01.2017 Pay Rs.34,700/- Increment
Level-6, Cell-14
01.01.2018 Pay Rs.35,700/- Increment
Level-6, Cell-15
01.01.2019 Pay Rs.36,800/- Increment
Level-6, Cell-16
01.01.2020 Pay Rs.37,900/- Increment
Level-6, Cell-17
01.01.2021 Pay Rs.39,000/- Increment
Level-6, Cell-18
***
W.P.(C) No.16778 of 2021 Page 14 of 87
Deputy Director, Mines
Jajpur Road Circle,
Jajpur Road"
2.7. Dissatisfied thereby, the petitioner approached this
Court by filing the instant writ petition to invoke
power of judicial review under Articles 226 and 227 of
the Constitution of India to restore the pay as earlier
fixed by the Mining Department.
Counter affidavit of the opposite party Nos.1, 2 and 3:
3. In reply to the contents of the writ petition, the
opposite parties sought to explain that during course
of audit of Original Service Book of some retired Check
Gate Clerks/Tally Clerks while verifying the
authenticity of pay fixation for determining their pay
for finalization of their retirement benefits, certain
irregularities were noticed and found that the Mining
Officers/Deputy Directors of Mines have allowed them
higher Grade Pay taking the post of Weigh Bridge
Supervisor and Transport Supervisor having Grade
Pay of Rs.2,800/- and Rs. 4,200/- respectively, as the
promotional post of Check Gate Clerk/Tally Clerk. In
the instant case the petitioner was allowed Grade Pay
of Rs.2,800/- and Rs.4,200/- with effect from
01.01.2013 and 12.01.2016 respectively as he had
completed 10 years and 20 years of continuousW.P.(C) No.16778 of 2021 Page 15 of 87
services on 11.01.2006 and 11.01.2016 respectively as
per the Revised Advanced Career Progression Scheme
(“RACPS”, for short) under the ORSP Rules, 2013 with
effect from 01.01.2013.
3.1. The post of Check Gate Clerk/Tally Clerk is a district
level posts and there exists no Cadre Rules. Concerned
Authorities at Circle Offices are the Appointing
Authorities. Since the petitioner has held the
isolated/ex-Cadre post not having any promotional
hierarchy and is eligible to get the next higher Grade
Pay as per the 1st Schedule of the ORSP Rules, 2008
with the interpolations, if any, introduced
subsequently.
3.2. It is a fact that earlier one Sri Anam Charana Behera
Check Gate Clerk had been considered for promotion
to the post of Weigh Bridge Supervisor during the year
1992 and subsequently he was promoted to the post of
Transport Supervisor during the 2001. Records
revealed that no such criteria have been framed while
considering the promotion for the above post.
Similarly, there is absence of Cadre Rules for
promotion to the aforementioned ex-Cadre post. No
promotion has been given to Weigh Bridge Supervisor
or Transport Supervisor from the post of Check Gate
Clerk/Tally Clerk since then as these posts are not in
W.P.(C) No.16778 of 2021 Page 16 of 87
hierarchical structure of the Cadre. The posts of Weigh
Bridge Supervisor and the Transport Supervisor are
separate ex-Cadre posts to Check Gate Clerks/Tally
Clerk.
3.3. The Deputy Director of Mines, Jajpur Road, by
considering as if the petitioner’s post of Check Gate
Clerks/Tally Clerk has hierarchical promotional
avenue, i.e., from Check Gate Clerks/Tally Clerk to
Weighbridge Supervisor and next above, i.e., Transport
Supervisor whose Grade Pay is Rs.2,800/- and
Rs.4,200/- respectively, has sanctioned Grade Pay of
Rs.2,800/- and Rs.4,200/-on completion of 10 years
and 20 years of service respectively.
3.4. It is further asserted that since the post of Check Gate
Clerk/Tally Clerk does not come under any
Recruitment Rules, Point No.13 of Clarification vide
Finance Department Memo No.1738– PCC(A)-37/
2013/F., dated 20.01.2014 can be adhered to for the
purpose of determining the Grade Pay. Taking into
above facts into consideration, the Director of Mines,
Odisha vide Letter No.2472/DM, dated 18.03.2021
has instructed all the Circle Offices to revise the pay of
all the Check Gate Clerks/Tally Clerks including the
petitioner, working under their administrative control
with Grade Pay of Rs.2,000/-, Rs.2,200/- and
W.P.(C) No.16778 of 2021 Page 17 of 87
Rs.2,400/- instead of Rs.2,800/-, Rs.4200/- and
Rs.4,600/- on completion of 10, 20 and 30 years of
service respectively. Accordingly, the Deputy Director,
Mines, Jajpur Road vide Officer Order No.559/Mines,
dated 07.04.2021 (Annexure-6) has cancelled the
earlier Order dated 16.03.2017 and revised the pay
with effect from 01.01.2013 so far as 1st RACPS is
concerned and with effect from 12.01.2016 so far as
2nd RACPS is concerned with Grade Pay and MACP as
admissible under ORSP Rules, 2017.
3.5. It is reaffirming that the post of Check Gate
Clerk/Tally Clerk is not a Cadre post, and the post of
Weigh Bridge Supervisor and Transport Supervisor to
which one Sri Anam Charana Behera Check Gate
Clerk was promoted did not have approved Cadre. As
such, consideration of benefit of RACPS construing the
same to be the promotional post would not have any
justification.
3.6. The Director of Mines, Odisha in the information
supplied under the Right to Information Act, 2005
stated that there is absence of approved Cadre Rules
for the posts of Tally Clerk/Check Gate Clerk. Though
the post of Check Gate Clerk has prospect of
promotion to the post of Weigh Bridge Supervisor and
Transport Supervisor, these posts are also not
W.P.(C) No.16778 of 2021 Page 18 of 87
governed by any approved Cadre Rules. Hence, the
posts are ex-Cadre posts. So, extension of benefit of
RACPS to the Check Gate Clerks in the promotional
post is not applicable. Hence, it is asserted by the
opposite parties that the Order of Director of Mines,
Odisha dated 18.03.2021 directing to cancel the
previous orders allowing RACP and revise the Grade
Pay as per Finance Department Notification is in
conformity with law.
Hearing:
4. As the pleadings are completed, on consent of counsel
for both the sides, this matter is taken up for final
hearing at the stage of admission.
4.1. Heard Mr. Susanta Kumar Dash, learned Advocate for
the petitioner and Smt. Saswata Patnaik, learned
Additional Government Advocate for the opposite
parties.
Rival contentions and submissions:
5. Sri Susanta Kumar Dash, learned counsel appearing
for the petitioner, placing the factual details of the
matter, submitted that as per RACPS contained in
Finance Department Resolution dated 06.02.2013,
three financial up-gradations were to be allowed to the
employees on completion of 10/20/30 years of service
W.P.(C) No.16778 of 2021 Page 19 of 87
in a single post/Cadre. Since the petitioner served in
the said post since 12.01.1996 without any promotion,
he had appropriately been considered entitled for
RACPS under the ORSP Rules, 2008. Citing Paragraph
10 of the ORSP Rules, 2013, the 1st RACPS granted
under the ORSP Rules, 2008 has been taken away
wrongly at the instruction of the Director of Mines.
5.1. He further submitted that the Grade Pays attached to
the post of the Weigh Bridge Supervisor and the
Transport Supervisor are Rs.2,800/- and Rs.4,200/-
respectively. Since Tally Clerk (ex-Cadre) has
promotional posts, viz., the Weigh Bridge Supervisor
and the Transport Supervisor, the Mines Department
having accepted this position granted RACPS to the
petitioner, but later on they have cancelled such grant
and reduced the amount of RACP in the Grade Pay of
Tally Clerk. Such action of the opposite parties being
violative of provisions the Rule 14 of the ORSP Rules,
2008 cannot withstand judicial scrutiny.
5.2. Sri Susanta Kumar Dash, learned Advocate has placed
heavy reliance on Order dated 03.05.2017 passed in
Additional Chief Secretary to Government and Others
Vrs. Sunil Pattanayak and another, W.P.(C) No.3460 of
2017, wherein the Judgment of this Court State of
Orissa Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016,
W.P.(C) No.16778 of 2021 Page 20 of 87
disposed of on 27.08.2016, was followed in the context
of cancellation of already granted RACPS in respect of
ex-Cadre employee.
5.3. By amplifying further he would submit that in the case
of Sunil Pattanayak (supra) after serving the
Department for thirty years, the petitioner was denied
3rd RACP as the Cadre Rules of Industrial Promotion
Officer do not envisage promotional hierarchy. Under
the above situation, the learned Odisha Administrative
Tribunal considered entitlement of 3rd RACP in favour
of the employee and held that the post of Industrial
Promotion Officer is not an ex-Cadre/isolated post
because of availability of promotional avenue and
hierarchical structure being prescribed in terms of
Rule 7 of the Odisha Industrial Service Rules, 1985.
Said view of the learned Odisha Administrative
Tribunal was carried to this Court in W.P.(C) No.3460
of 2017, which stood undisturbed vide Order dated
03.05.2017.
5.4. He also submitted that Paragraph 10 of the RACPS
vide Finance Department Resolution dated
06.02.2013, being beneficial in character and aims at
according financial incentives/upgradation in the
event of stagnation in promotion, it is not intended to
discriminate a category or group of Government
W.P.(C) No.16778 of 2021 Page 21 of 87
employees. Therefore, he would urge that Finance
Department Clarification can be read as if it is
supplementary to the RACPS, but not supplant of said
Resolution. It is forcefully argued by Sri Susanta
Kumar Dash, learned Advocate that the petitioner
deserves to get the RACPS benefit of the Grade Pay
attached to the Weigh Bridge Supervisor and the
Transport Supervisor.
5.5. Since the contention and the claim were not taken
care of by the opposite parties in proper perspective in
consonance with the direction of this Court vide Order
dated 05.04.2021 passed in W.P.(C) No.12411 of 2021,
the petitioner has sought for appreciation of factual
matrix and render a decision in tune with Sunil
Pattanayak Vrs. Additional Chief Secretary to
Government, W.P.(C) No.3460 of 2017, vide Order dated
03.05.2017 following the Judgment dated 27.06.2016
rendered in the case of State of Odisha Vrs. Bihari Lal
Barik, W.P.(C) No.2831 of 2016.
6. Smt. Saswata Patnaik, learned Additional Government
Advocate contesting the arguments advanced by Sri
Susanta Kumar Dash, learned Advocate for the
petitioner made valiant attempt to justify the decision
of the Director of Mines vide Letter dated 18.03.2021
W.P.(C) No.16778 of 2021 Page 22 of 87
and consequential step taken by the Deputy Director
of Mines vide Office Order dated 07.04.2021.
6.1. While seeking to distinguish the decisions rendered in
the cases of Sunil Pattanayak Vrs. Additional Chief
Secretary to Government, W.P.(C) No.3460 of 2017, vide
Order dated 03.05.2017 and State of Odisha Vrs.
Bihari Lal Barik, W.P.(C) No.2831 of 2016, vide
Judgment dated 27.06.2016, she contended that the
petitioner, Tally Clerk, an ex-Cadre post, cannot be
extended the benefit of RACPS under the ORSP Rules,
2008 and the ORSP Rules, 2013. The Deputy Director
of Mines has rightfully adhered to the instructions
imparted by the Director of Mines by revising the
Grade Pay appropriately as the posts of the Weigh
Bridge Supervisor and the Transport Supervisor are
not the promotional posts of Check Gate Clerk/Tally
Clerk.
6.2. With her usual vehemence, Smt. Saswata Patnaik
urged that as per Point No.13 of the Clarification
issued by the Finance Department vide Memo
No.1738, dated 20.01.2014, the petitioner, Tally Clerk
could not be considered for the promotion to the post
of the Weigh Bridge Supervisor or the Transport
Supervisor. Therefore, the re-fixation of pay of the
W.P.(C) No.16778 of 2021 Page 23 of 87
petitioner in the Pay Band and the Grade Pay
appropriately cannot be said to be arbitrary or illegal.
6.3. Relying on Point No.13 of the Finance Department
Clarification in Memorandum No.1738, dated
20.01.2014, she submitted that the RACPS under the
ORSP Rules, 2008 is the benefit extended to the
employees having appointment to a post under a
Cadre and “a Cadre means a post for which a specific
Recruitment Rule is framed”. Since the post of Check
Gate Clerk/Tally Clerk is a district level ex-Cadre post
and not governed by any Cadre Rules, the benefit of
RACPS in the promotional post is not applicable.
Therefore, the Director of Mines, Odisha vide Order
dated 18.03.2021 directed to cancel the previous
Orders granting RACP erroneously and accordingly,
the Deputy Director of Mines has revised the Pay Scale
with Grade Pay appropriately under the RACPS taking
into consideration the completion of years of service.
6.4. Smt. Saswata Patnaik, learned Additional Government
Advocate referred to Paragraph 10 of Resolution dated
06.02.2013 and sought to rely on Point No.13 of the
Finance Department Clarification vide Memo dated
20.01.2014, to contend that it is unequivocally
provided that the RACPS for the State Government
employees is attracted in respect of “employees of the
W.P.(C) No.16778 of 2021 Page 24 of 87
Cadre having promotional hierarchy”. Reiterating what
has already urged, she strenuously argued that the
petitioner, Tally Clerk, working against ex-Cadre post
having no promotional avenue, has been denied the
benefit of RACPS for justified reason, which warrants
no interference.
7. Opposing the arguments advanced by Smt. Saswata
Patnaik, learned Additional Government Advocate and
to buttress his contentions, Sri Susanta Kumar Dash,
learned counsel appearing for the petitioner drew
attention of this Court to Serial No.7 of the Finance
Department Clarification vide Memo dated 20.01.2014.
that since the post of Daftary/Zamadar is “always
filled up by Class-IV employees on promotion only and
there is no direct appointment to the post of
Daftary/Zamadar, this post is considered as a Cadre
post of Class-IV post in absence of any Cadre Rule” the
benefit of RACPS has been allowed under the ORSP
Rules, 2008. Therefore, it is submitted by learned
counsel for the petitioner that parity with Anam
Charana Behera, who was given the hierarchy of
Weigh Bridge Supervisor and Transport Supervisor, be
maintained. At different times, the Mines Department
could not take different stance and treat the petitioner
with discrimination on the specious plea of absence of
approved Cadre Rules.
W.P.(C) No.16778 of 2021 Page 25 of 87
7.1. Sri Susanta Kumar Dash, learned Advocate, thus,
refuting the contentions of Smt. Saswata Patnaik,
learned Additional Government Advocate, laid
emphasis that the petitioner, Tally Clerk, should not
have been treated differently and the benefit of RACPS
as has already been extended could not have been
cancelled retrospectively.
Analysis and discussions:
8. It is not in dispute that:
(a) The petitioner is appointed as “Tally Clerk” in the
year 1996 in scale of pay of Rs.950-20-1150-
E.B.-25-1500 with usual D.A.
(b) The entitlement for RACPS is available to
Government employees on completion of 10, 20
and 30 years of service.
(c) As per information provided by the Director of
Mines as Public Information Officer under the
Right to Information Act, 2005, it is
unambiguous that in absence of Cadre Rules, the
post of the Transport Supervisor is considered as
promotional post of the Weigh Bridge Supervisor
and the Weigh Bridge Supervisor is the
promotional avenue for the Check Gate Clerk/the
Tally Clerk.
W.P.(C) No.16778 of 2021 Page 26 of 87
(d) Though at paragraph 4(f) of the counter affidavit
it has been asserted that no promotion has been
given to the Weigh Bridge Supervisor or the
Transport Supervisor from the post Check Gate
Clerk/Tally Clerk, as these posts are not in
hierarchical structure of the Cadre and the Weigh
Bridge Supervisor and the Transport Supervisor
are separate ex-Cadre posts of Check Gate Clerk/
Tally Clerk, it has been conceded at Paragraph
4(g) of said counter affidavit that “the post of
Weigh Bridge Supervisor and Transport
Supervisor to which an incumbent (Sri Anam
Charana Behera Check Gate Clerk) was
promoted does not have approved Cadre Rules.”
9. The Odisha Revised Scales of Pay Rules, 2008 has
been framed in exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India with
effect from 01.01.2006.
9.1. The provisions of Rules 2, 3 and 4 of the ORSP Rules,
2008, stand as follows:
“2. Application.–
(1) Save as otherwise provided by or under these
Rules, these rules shall apply to all persons in
whole time employment of Government.
(2) These Rules shall not apply to–
W.P.(C) No.16778 of 2021 Page 27 of 87
(i) persons engaged by Government on contract
basis except when the contract provides
otherwise;
(ii) persons re-employed in Government service
after retirement;
(iii) persons paid out of contingencies;
(iv) persons paid otherwise than on a monthly
basis including those paid only on piece-rate
basis;
(v) persons not drawing pay in regular scales of
pay for whom no revised scales of pay are
prescribed;
(vi) employees borne in the “Work-charged
Establishment” as defined in the Resolution
of Government in the erstwhile Political and
Services Department No.9488 dated the 18th
June 1974;
(vii) employees governed by the Orissa Revised
Scales of Pay (for College Teachers) Rules,
1978, the Orissa Revised Scales of Pay (for
Medical College Teachers) Rules, 1982, the
Orissa Revised Scales of Pay (for College
Teachers) Rules, 1989, the Orissa Revised
21 Scales of Pay (for Medical College
Teachers) Rules,1989, the Orissa Revised
Scales of pay (for College Teachers)
Rules,2001, the Orissa Revised Scales of Pay
(for Medical College Teachers) Rules, 2001,
the Orissa Revised Scales of Pay (for
Engineering College Teachers) Rules, 2001,W.P.(C) No.16778 of 2021 Page 28 of 87
the Orissa Superior Judicial Service
Rules,1963, the Orissa Judicial Service
Rules, 1994, the Orissa Superior Judicial
Service and Orissa Judicial Service Rules,
2007 read with Finance Department
Resolution No.23598/F dated 3.06.2003
revising the scales of pay for the Judicial
Officer of the subordinate Judiciary service in
the State of Orissa as per the
recommendations of Justice Shetty
Commission;
(viii) persons not in whole time employment under
Government of Orissa;
(ix) any other Class or category of persons whom
the Governor may by order specifically
exclude from the operation of all or any of the
provisions contained in these Rules.
3. Definitions.–
In these rules, unless the context otherwise
requires,–
(1) (i) “existing basic pay” means pay drawn
in the prescribed existing scale of pay,
including stagnation increment(s),
personal pay granted due to fixation of
pay under sub rule (d) of Rule 74 of the
Orissa Service Code including the cases
where reduceable personal pay has
been granted to protect the total
emoluments on account of loss of
special pay, advance increments
granted, if any but does not include any
W.P.(C) No.16778 of 2021 Page 29 of 87
other type of pay like “special pay”,
etc.;
(ii) “existing scale” in relation to a
Government servant means the present
scale applicable to the post held by the
Government servant (or, as the case
may be, any personal scale of pay
applicable to him/her) as on the 1st
day of January, 2006 in a substantive
or temporary capacity:
Provided that in the case of Government
servant who, on the 1st day of January
2006 was on deputation, leave, foreign
service or training or who would have
on that date continued in one or more
lower posts but for his officiating in a
higher post, “existing scale” means the
scale of pay applicable to the post
which he would have held but for his
being on such deputation, leave, foreign
service or training as the case may be,
but for his officiating in a higher post;
(2) (i) “existing emoluments” means the sum
of–
(i) existing basic pay,
(ii) dearness pay appropriate to the
basic pay and
(iii) dearness allowance appropriate to
the basic pay + dearness pay at
Index average 536(1982=100);
W.P.(C) No.16778 of 2021 Page 30 of 87
(ii) “present scale” in relation to any
post/grade specified in Column 2 of the
First Schedule means the scale of pay
specified against that post in column 5
thereof;
(iii) “pay in the pay band” means pay
drawn in the running pay bands
specified in column 5 of the First
Schedule;
(iv) “Grade Pay” is the fixed amount
corresponding to the pre revised pay
scales/posts as specified in column 6 of
the First Schedule;
(v) “revised pay structure” in relation to
any post specified in column 3 of the
First Schedule means the pay band and
Grade Pay specified against that post
or the pay scale specified in column 5
and 6 thereof, unless a different revised
pay band and Grade Pay or pay scale
is notified separately for that post;
(vi) “basic pay” in the revised pay structure
means the pay drawn in the prescribed
pay band plus the applicable Grade
Pay but does not include any other type
of pay like special pay, etc.;
(vii) “revised emoluments” means the pay in
the pay band plus Grade Pay of a
Government servant in the revised pay
structure;
W.P.(C) No.16778 of 2021 Page 31 of 87
(viii) “Schedule” means Schedule annexed to
these Rules;
(5) “Pay” means the pay as defined in clause (i) of
sub-rule (a) of Rule 33 of the Orissa Service Code
in the existing scale and shall include–
(i) ad hoc increment granted in the shape of
personal pay on account of stagnation at the
maximum of the existing scale;
(ii) Personal pay granted due to fixation of pay
under sub-rule (d) of Rule 74 of the Orissa
Service Code, including the case where
reduceable personal pay has been granted to
protect the total emoluments on account of
loss of special pay;
(iii) advance increment (s) granted, if any;
NOTE–
A list of existing scale of pay and their
corresponding Pay band/revised pay structure is
appended to the First Schedule to these rules.
4. Scale of Pay.–
The revised pay structure with the pay band, pay
scale and Grade Pay as applicable, corresponding
to the existing scale of every post/grade specified
in Column (2) of the First Schedule shall be as
specified against it in Column (5) and (6) thereof.”
9.2. Division Bench of this Court in the case of Susanta
Kumar Dash Vrs. State of Odisha, W.P.(C) No.18142 of
2020, vide Judgment dated 22.09.2023 has analysed
W.P.(C) No.16778 of 2021 Page 32 of 87
the position of “pay” vis-à-vis the provisions contained
in the Odisha Service Code with particular reference to
the RACPS in the following manner:
“7. Before delving into the question involved in the
present writ petition, it is worthwhile to note that
being Rules made by the Governor of Odisha
under clause (b) of sub-section (2) of Section 241 of
the Government of India Act, 1935 continued in
force under Article 330 of the Constitution of India,
as amended from time to time under the proviso to
Article 309 of the Constitution of India, the Odisha
Service Code was framed, which came into force
with effect from the 1st April 1939. The Rules in
the Odisha Service Code, which have been framed
by the Governor of Odisha under clause (b) of sub-
section (2) of Section 241 of the Government of
India Act, 1935, are applicable to State Services,
Special Officers and Subordinate Services under
the rule-making control of the Government of
Odisha. Thereby, the Odisha Service Code is
deemed to be Code of Rules made under Article
309 of the Constitution of India.
8. In Finance Department Notification No.11711-F
dated 20th August, 1950, it has been clarified that
in exercise of powers conferred by Article 309 of
the Constitution of India read with Article 302
thereof, the Governor of Odisha has been pleased
to direct that the Odisha Service Code shall be
deemed to be a Code of Rules made under Article
309 of the Constitution of India.
W.P.(C) No.16778 of 2021 Page 33 of 87
9. In B.S. Jadav Vrs. State of Haryana, AIR 1981 SC
561, the apex Court held that the power of
Governor under proviso to Article 309 of the
Constitution is legislative power. Under this
proviso, he substitutes for the Legislature because
the Legislature has not yet exercised its power to
pass an appropriate law on the subject. The
Governor is thus competent to frame rules
regarding recruitment and conditions of service of
Judicial Officers by virtue of powers under Article
309 of the Constitution.
10. In State of Bihar Vrs. Bal Mukund Sah, AIR 2000
SC 1296, the apex Court held that Article 309 of
the Constitution is expressly made subject to other
provisions of the Constitution and subject to that,
appropriate Legislature or Governor can regulate
the recruitment and conditions of service of
persons appointed to public services and posts in
connection with the affairs of State concerned.
11. Applicability of said rules to a public servant is
well defined in Shamrao Vishnu Parulekar Vrs.
District Magistrate, Thane, AIR 1957 SC 23,
wherein the apex Court stated that the test to
determine whether a person is a public servant is:
(1) Whether he is in the service and pay of the
Government; and(2) Whether he is entrusted with the
performance of any public duty.
12. In Ramesh Balak Kishna Kalkarni Vrs. State of
Maharashtra, AIR 1985 SC 1655, the apex Court
held that a public servant is an authority who
W.P.(C) No.16778 of 2021 Page 34 of 87
must be appointed by the Government authority,
remain in the pay of the Government discharge
duties in accordance with Rules, regulations made
by the Government.
13. Therefore, a public servant, being in service and
pay of the Government, performs the public duties
is the test to be followed for the said purpose. Rule
33 of the Odisha Service Code has explained the
meaning of „pay‟ which reads as follows:
„ „Pay‟ means the amount drawn monthly by the
Government servant as:
(a) (i) the pay, other than special pay or pay
granted in view of his personal
qualifications, which has been
sanctioned for a post held by him
substantively or in an officiating
capacity or to which he is entitled by
reason of his position in the cadre.
(ii) special pay and personal pay; and
(iii) any other recurring emoluments which
may be specially classed as pay by the
State Government.
(b) In the case of an officer of another State
Government or Government of India on
deputation to the Government of Orissa,
“Pay” means the pay as defined in the rules
of the said State Government or Government
of India and applicable to the officer during
the period of deputation, except as otherwiseW.P.(C) No.16778 of 2021 Page 35 of 87
specified in the terms the deputation with the
concurrence of the Government of Orissa.‟
14. The Concise Oxford Dictionary, 8th Edition (1990
at page 874) defines the word „pay‟ in its ordinary
significance in relation to service means to give
what is due for service done. But in relation to
Public service in India, the word “pay” contained
in the various service Rules.
15. In State Bank of India Vrs. K.P. Subbaiah, 2003
AIRSCW 3436, the apex Court held as follows:
„In service Jurisprudence the expression „pay‟ and
„pay scale‟ are conceptually different connotations.
Pay is essentially a consideration for the services
rendered by an employee and is the remuneration
which is payable to him. Remuneration is the
recurring payment for services rendered during
the tenure of employment. Pay and salary are
necessary not interchangeable concepts.‟
16. In N.D.P. Namboodripad Vrs. Union of India,
(2007) 4 SCC 502, the apex Court held that „pay‟
means the amount drawn monthly by an officer
as:
(i) The pay, other than special pay or pay
granted in view of his personal
qualifications, which has been sanctioned for
a post held by him substantively or in an
officiating capacity or to which is entitled by
reason of his position in a cadre,
(ii) Personal pay and special pay, and
W.P.(C) No.16778 of 2021 Page 36 of 87
(iii) Any other emoluments which may be
specially classed as pay by the Government.
17. This being the meaning and definition of „pay‟
attached to Rule 33 of the Odisha Service Code,
ChapterIV of the said Code deals with „Pay‟ in
broader sense and Section 1 thereof deals with
time scale of pay. Rule 73 of the Odisha Service
Code reads as follows:
„The rules in this section apply to all time scale of
pay, except in so far as they may be inconsistent
with terms specially sanctioned by the State
Government for any particular time scale. The
application of Rules 76 and 81 is not confined to
posts on a time scale of pay but extends to all
posts.‟
18. In Bombay Dyeing and Manufacturing Co. Vrs.
State of Bombay, AIR 1958 SC 328, the apex
Court held that a Government employee is entitled
to draw the pay while he is on duty. The duty
includes the departmental examination or any
other optional examination or training of the
Government employees, provided they are
permitted to do so by the authority concerned.
When an employee has done his work, the amount
of wages earned by him becomes a debt due to
him from the employer and is property, which can
be assigned under the law. If the pay has
accrued, the right to receive it becomes a
Fundamental Right.
19. Rule 74 of the Odisha Service Code deals with
fixation of pay, which reads as follows:
W.P.(C) No.16778 of 2021 Page 37 of 87
“(a) The initial pay of a person, other than one
already in service of Government, when
appointed to a post under Government shall
be the minimum of the pay scale prescribed
for the post unless otherwise decided by
Government.
(b) Where a Government servant holding a post,
is promoted or appointed to another post
carrying duties and responsibilities of greater
importance than those attached to the post
held by him, his initial pay in the time scale
of the higher post shall be fixed at the stage
next above the pay notionally arrived at by
increasing his pay in respect of the lower
post by one increment at the stage at which
such pay has accrued:
Provided that where a Government servant,
immediately before his promotion or
appointment to a higher post, is drawing pay
at the maximum of the time-scale of the lower
post, his initial pay in the time-scale of the
higher post shall be fixed at the stage, next
above the pay notionally arrived at by
increasing his pay in respect of the lower
post by an amount equal to his last
increment in the time scale of the lower post.
(c) [Deleted with effect from 28.05.1987 vide
Finance Department Notification No.
22836/F. dated 26.05.1987.]
(d) Where a Government servant is appointed to
another post which does not involveW.P.(C) No.16778 of 2021 Page 38 of 87
assumption of duties and responsibilities of
greater importance than those atto the old
post, his pay will be fixed at the stage of the
time-scale which is equal to his pay in
respect of the old post, or if there be no such
stage, the stage next below that pay plus
personal pay equal to the difference, and in
such time as he would have received an
increment in the time scale of the old post or
for the period after which an increment is
earned in the time-scale of the new post,
whichever is less:
Provided that where the minimum pay of the
time-scale of the new post is higher than his
pay in respect of the old post, he will draw
that minimum as initial pay:
Provided that cases covered by the sub-rule
(b) and this sub-rule other than cases of re-
employment after resignation, removal or
dismissal from public service, if the
Government servant either has previously
held the same post or a post on an identical
time-scale, then the initial pay shall not be
less than the pay, other than special pay
personal pay, or emoluments specially
classified as pay by the State Government
under clause (iii) of sub-rule (a) of Rule 33,
which he drew on the last such occasion,
and the period during which he drew that
pay on such last and any previous occasions
all count for increment in the stage of the
time scale equivalent to that pay. If stage
next below that pay, the difference being
W.P.(C) No.16778 of 2021 Page 39 of 87
allowed as personal pay. However, except
the case where the Government servant is
appointed to the same post, if the pay last
drawn by the Government servant in a
temporary post has been inflated by the
grant of premature increments, the pay
which he would have drawn but for the grant
of those increment shall be taken for the
purpose of this provision to be the pay which
he last drew, in the temporary post.
(e) If the substantive pay of the permanent post
is at any time enhanced as a result of
increment or otherwise, the pay of the
Government servant shall be re-fixed from
the date of such enhancement, where such
re-fixation is to his advantage provided that
the pay so re-fixed does not exceed the
substantive pay in the permanent post. This
shall not apply to a Government servant who
is appointed on his own request to the new
post.
(f) When a Government servant is transferred
on his request to a post carrying less pay
than the pay of his old post and the
maximum pay in the time scale of that post is
less than his pay in respect of the old post,
he will draw that maximum as initial pay.‟
20. In Finance Department Notification No.3364/F.,
dated 06.02.1964, it has been stated as follows:
„1. Authority competent to fix the pay:
W.P.(C) No.16778 of 2021 Page 40 of 87
The undersigned is directed to say that
references are made to this Department for
clarification of the authority competent to fix
the pay under Rule 74 of the Orissa Service
Code, Volume I. According to the provision of
Rule 4 of the Orissa Service Code, Volume I,
any power which is expressed in the rules of
the said Code as residing in the State
Government and delegated after consultation
with Finance Department may be exercised
by the subordinate authority in respect of
Government servants under its
administrative control to such extend and
subject to such condition as the State
Government may determine. In pursuance of
this, when no power in the Rules of the said
Code has been expressed as residing in the
State Government, the concurrence of
Finance Department for grant of concession
admissible under the Rule is not insisted
upon by the audit. When the rule confers a
certain benefit without specifying the
authority competent to exercise the power,
the State Government servant is entitled to
the same and it can be allowed by the Head
of Office by issue of an office order. Even
where the appointing authority is a superior
officer, the subordinate officer is competent to
allow such concession by issue of an office
order. As in the Rule 74 ibid., no power as
residing in the State Government has been
expressed and the authority competent to fix
the pay has not been specified, the
concurrence of Finance Department is not
W.P.(C) No.16778 of 2021 Page 41 of 87
necessary for fixation of pay under the said
rule excluding the cases coming under the
“Exception” thereunder. In the matter of
fixation of pay where a certificate is required
to be furnished under the “Exception” of the
said rule the concurrence of the Finance
Department to the issue of the said certificate
may be obtained for satisfaction of audit.‟Similarly, Finance Department Notifications
No.24495/F., dated 21.06.1988 and
No.25773/F., dated 11.06.1992 prescribe with
regard to exercise of option for fixation of pay on
promotion to higher post, to the following effect:
„2. Exercise of option for fixation of pay on
promotion to higher post: An employee may
be given the benefit of exercising an option
for fixation of his pay on promotion as under:
(a) Either his initial pay may be fixed in the
higher post on the basis of Rule 74(b) of
Orissa Service Code straightway
without further review on accrual of
increment in the pay scale of the lower
post, or
(b) his pay may be fixed initially in the
manner as provided under Rule 74(d) of
Orissa Service Code which may be re-
fixed on the basis of the provisions of
Rule 74(b) of Orissa Service Code on the
date of accrual of his next increment in
the scale of pay of the lower post.
Consequently upon fixation of pay
W.P.(C) No.16778 of 2021 Page 42 of 87
under (b) above, the next date of
increment will fall due on completion of
12 months‟ qualifying service from the
date the pay is refixed on the second
occasion.
2. Option can only be exercised in case of
regular promotion where fixation of pay is
required to be made under Rule 74 (b) of
Orissa Service Code.
3. Option is not admissible in case of
combination of appointments or purely
temporary promotion (which does not include
ad hoc promotion made on the basis of D.P.C.
recommendation).
4. Protection of officiating pay drawn during
earlier occasion available under the third
proviso to Rule 74(d) of Orissa Service code
will not be applicable where option is
exercised for re-fixation of pay under Rule
74(b) of Orissa Service code after accrual of
increment in the lower post.‟
21. Rule 76 of the Odisha Service Code reads as
follows:
„Pay when pay of a post is changed:
The holder of a post, the pay of which is changed,
shall be treated as if be were transferred to a new
post on the new pay; provided that he may at his
option retain his old pay until the date on which
he has earned his next or any subsequent
increment on the old scale, or until he vacates hisW.P.(C) No.16778 of 2021 Page 43 of 87
post or ceases to draw pay on that time-scale. The
option once exercised is final.‟
22. On the basis of the recommendation of the 6th
Central Pay Commission, Government of India in
the Ministry of Finance (Department of
Expenditure), vide Notification No.G.S.R.622(E)
dated the 29th August, 2008, revised the pay
scale of Central Government employees with effect
from 01.01.2006. Consequent upon revision of the
pay scale of the Central Government employees,
the State Govt. constituted a Fitment Committee in
FD Resolution No.CS-I(P)-15/2008-41279/F, dated
the 9th September, 2008 to recommend revision on
the pay scale of the State Government employees,
to suggest modalities and procedure of fitment of
the existing grades in the revised scale of pay, to
examine anomalies in the existing pay scale and
to review the scale of other allowances and
relatable pay. The said committee submitted its
recommendation to Government on 03.12.2008.
23. Having regard to the recommendation of the
Fitment Committee, demands of various service
associations and after careful consideration of all
aspects of related issues, including the Scales of
Pay prevalent in the Central Government, the
State Government revised the pay structure of the
State Government employees as indicated in
Annexure-1 thereof. It has been stipulated therein
that Assured Career Progression (ACP) will be
applicable to all the State Government employees
up to Grade-A with effect from 01.01.2006 in three
stages i.e. 1st ACP on completion of 15 years, 2nd
ACP after 25 years and 3rd ACP after 30 years of
W.P.(C) No.16778 of 2021 Page 44 of 87
service, if they continue in one post/grade. The
benefit of ACP will be given only after screening of
each and every case by the screening committee to
be constituted by the controlling Departments and
all norms of promotion shall be taken into
consideration for allowing ACP in different stages.
The financial benefit to the extent of 3% of the
basic pay plus Grade Pay will be added on
availing ACP in different stages and next
increment will accrue one year after. If the
Government employee has already availed both
1st and 2nd stage of Time Bound Advancement
(TBA) scale under earlier revised pay rules,
he/she will not be again entitled to the ACP in the
revised pay. However, the 3rd ACP after
completion of 30 years of service shall be
applicable, as stated therein. Accordingly, pay
fixation formula evolved and benefit has been
extended with effect from 01.01.2006 to all the
State Government employees.
24. The State Government, vide Finance Department
Notification No.3560/F., dated 06.02.2013,
introduced Revised Assured Career Progression
Scheme (RACPS) for the State Government
Employees, which reads as follows:
***
As it appears, under the Revised Assured Career
Progression Scheme (RACPS), there shall be three
financial up-gradations under the RACPS, counted
from the direct entry grade on completion of 10, 20
and 30 years of service in a single cadre in
absence of promotion. An employee, if completedW.P.(C) No.16778 of 2021 Page 45 of 87
10 years of service in the entry grade will be
considered for 1st up-gradation under RACPS. An
employee completing 20 years of service and has
got only one upgradation either by promotion or by
RACPS will be considered for the 2nd upgradation.
Similarly, an employee completing 30 years of
service and has got two upgradation either by
RACPS or promotion or both will be considered for
3rd upgradation under RACPS. The financial
upgradation under the RACPS would be
admissible upto the highest Grade Pay of
Rs.7600/- in the Pay Band PB-3 under ORSP
Rules, 2008. Therefore, it is made clear from the
above provision that „pay‟ means the amount
drawn monthly by the Government servant on
various heads, as mentioned in Rule-33 of the
Odisha Service Code.
25. Rule 73 deals with time scale of pay adhering to
the pay fixation formula. As mentioned therein,
and under the Odisha Revised Scale of Pay Rules,
1998, though Assured Career Progression was
granted and basing upon that the Revised Scale of
Pay Rules, 2008 also extended such benefit with
effect from 01.01.2008, subsequently RACPS was
introduced by the State Government to give
financial upgradation to its employees on
completion of 10 years, 20 years and 30 years of
service due to stagnation in the promotional
benefits.”
9.3. On the recommendations of Fitment Committee, the
State Government employees are granted Assured
Career Progression (“ACP”, for short) on completion of
W.P.(C) No.16778 of 2021 Page 46 of 87
15, 25 and 30 years of service akin to the Time Bound
Advancement (“TBA”, for short) as per provisions of the
Odisha Revised Scales of Pay Rules, 1998. Such
provision was revised by the 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.
9.4. The Finance Department Resolution whereby the
RACPS has been introduced with effect from
01.01.2013 reads as under:
“Government of Odisha
Finance DepartmentRESOLUTION
No.3560/F/PCC(A)-49/2012 Date: 06.02.2013Sub:- 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
W.P.(C) No.16778 of 2021 Page 47 of 87
and 3rd ACP after 30 years of service in their
original post/grade by addition of one increment @
3% on the Basic Pay + Grade Pay with next
annual increment after a period of one year from
the date of sanction of the ACP.
2. The Government of India in the meanwhile, had
introduced Modified Assured Career Progression
Scheme (MACPS) for the Central Government
Civilian employees in supersession of the
provisions of ACP scheme. Consequent upon
implementation of the MACPS by the Government
of India, various Service Associations of the State
Government employees have come up with
memoranda to consider implementation of the
MACPS in respect of employees of the State
Government.
3. Taking into account the uncertain promotional
avenues and career stagnation of the State
Government employees, Government after careful
consideration have decided to implement a career
advancement scheme to be known as Revised
Assured Career Progression Scheme (RACPS).
4. The RACPS is to be effective from 01.01.2013.
5. The details of the RACP Scheme and conditions for
grant of the financial up-gradation under the
Scheme are given in Annexure-1.
By order of the Governor
Sd/-
Additional Secretary to Government
W.P.(C) No.16778 of 2021 Page 48 of 87
REVISED ASSURED CAREER PROGRESSION SCHEME
(RACPS):
1. There shall be three financial upgradations under
the RACPS, counted from the direct entry grade on
completion of 10, 20 and 30 years of service in a
single cadre in absence of promotion. An employee
if completed 10 years of service in the entry grade
will be considered for 1st up-gradation under
RACPS. An employee completing 20 years of
service and has got only one upgradation either by
promotion or by RACPS will be considered for the
2nd upgradation. Similarly an employee completing
30 years of service and has got two upgradation
either by RACPS or promotion or both will be
considered for 3rd upgradation under RACPS.
2. The financial upgradation under the RACPS would
be admissible upto the highest Grade Pay of
Rs.7600/- in the Pay Band PB-3 under ORSP
Rules, 2008.
3. There shall be a Screening Committee to decide
the eligibility of the persons for upgradation under
RACPS. The Screening Committee shall follow a
time schedule and meet twice in a financial year,
preferably in the first week of January and first
week of July every year for advance processing of
the cases maturing in that half year. Accordingly,
cases maturing during the first-half i.e. April to
September of a particular financial year shall be
taken up for consideration by the Committee in the
first week of January. Similarly, the Screening
Committee meeting in the first week of July shall
process the cases that would be maturing duringW.P.(C) No.16778 of 2021 Page 49 of 87
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
effect of RACP. The next increment due shall be 12
months from the date of such fixation.
6. On grant of financial upgradation under the
Scheme, there shall be no change in the
designation, classification or status. However,
financial and certain other benefits which are
linked to the pay drawn by an employee such as
HBA, allotment of Government accommodation
may be permitted.
7. Financial upgradation under the RACPS shall be
purely personal to the employee and shall have no
relevance to his position of seniority in the grade.
As such, there shall be no stepping up of
pay/antedation of increment between Senior and
Junior after regulation of pay under RACPS.
W.P.(C) No.16778 of 2021 Page 50 of 87
8. The Pay Band PB-3 of Rs.15,600-39,100/- with
Grade Pay of Rs.5400/- being the Group-A Entry
Grade Pay Band shall not be allowed under
RACPS to an employee in Pay Band PB-2. For
example, if an employee in the Pay Band PB-2 i.e.
Rs.9,300-34,800/- with Grade Pay of Rs.4600/-
gets financial upgradation under RACPS, he shall
be entitled to get his/her pay fixed in the Pay
Band PB-2 i.e. Rs.9,300-34,800/- with Grade Pay
of Rs.5400/- instead of Pay Band PB-3 i.e.
Rs.15,600-39,100/- with Grade Pay of Rs.5400/-.
9. There shall be no further financial upgradation
under RACPS, if an employee has already availed
three financial upgradations by way of
RACPS/Promotion.
10. Benefit of pay fixation available at the time of
regular promotion shall also be allowed at the time
of financial upgradation under the Scheme, which
means the pay shall be raised by 3% of the total of
pay in the Pay Band and the Grade Pay drawn
before such upgradation. The employees of the
cadre having promotional hierarchy will get
the Grade Pay of the promotional post. The
employees in isolated/ex-cadre posts not
having any promotional hierarchy will get
the next higher Grade Pay as per the first
schedule of ORSP Rules, 2008 with the
interpolations, if any introduced
subsequently. In case the new Grade Pay
corresponds to a different Pay Band, the employee
will get the Pay Band corresponding to the revised
Grade Pay. There shall, however, be no further
fixation of pay at the time of regular promotion.
W.P.(C) No.16778 of 2021 Page 51 of 87
11. The RACPS shall also be applicable to work
charged employees, only if their service conditions
are comparable with the staff of regular
establishment.
12. The RACPS is directly applicable only to State
Government employees. It will not get
automatically extended to employees of State
PSUs/Autonomous/Statutory Bodies under the
administrative control of a Department. Keeping in
view the financial implications involved, a
conscious decision in this regard shall have to be
taken by the respective Government Body/ Board
of Directors as well as the Administrative
Department concerned and wherever it is
proposed to adopt the RACPS, prior concurrence of
Financial Department shall be obtained.
13. If a financial upgradation under the RACPS is not
allowed after 10 years in a Grade Pay and is
deferred for the reason an employee being unfit or
due to departmental proceedings, his case will be
reviewed in subsequent years. In the matter of
disciplinary/penal proceedings, grant of benefit
under the RACPS shall be subject to rules /
guidelines governing normal promotion. Such
cases shall, therefore, be regulated under the
provisions of the OCS (CCA) Rules, 1962 and
instructions issued thereunder.
14. The RACPS contemplates mere placement on
personal basis in the Grade Pay and pay scale of
the higher post and shall not amount to actual
functional promotion of the employees concerned.
Therefore, no reservation orders/roster shall apply
W.P.(C) No.16778 of 2021 Page 52 of 87
to the RACPS. However, as usual the rules of
reservation in promotion shall be ensured at the
time of regular promotion. For this reason, it may
not be mandatory to associate members of SC/ST
in the Screening Committee meant to consider
cases for grant of financial upgradation under the
Scheme.
15. Pay drawn in the Pay Band and the Grade Pay
allowed under the RACPS shall be the basis for
determining the terminal benefits in respect of the
retiring employee.
16. If a regular promotion in due course is refused by
the employee before becoming entitled to a
financial upgradation, then there shall be no
financial upgradation under RACPS as the
employee has not been stagnated due to lack of
promotional opportunities. If, however, financial
upgradation has been allowed due to stagnation
and the employee refuses the subsequent
promotion, it shall not be a ground to withdraw
the financial upgradation. He shall, however, not
be eligible to be considered for further financial
upgradation till he agrees to be considered for
promotion again and the next financial
upgradation shall also be deferred to the extent of
period of debarment due to such refusal.
17. Employees on deputation need not revert to the
parent Department for availing the benefit of
financial upgradation under the RACPS. They may
exercise a fresh option to draw the pay in the Pay
Band and the Grade Pay of the post held by them
or the pay plus Grade Pay admissible to them
W.P.(C) No.16778 of 2021 Page 53 of 87
under the RACPS, whichever is beneficial like the
regular employee in the parent cadre had they not
been deputed.
18. Assured Career Progression (ACP) availed under
ORSP Rules, 2008 shall not be taken into account
while considering the RACPS in favour of an
employee. But, no pay fixation shall be allowed by
extending the benefit of 3% of basic pay and
Grade Pay to the existing Pay but only the Grade
Pay as applicable shall be allowed while giving
RACPS.
Sd/-
Additional Secretary”
10. The legal position regarding the distinction between
upgradation and promotion is well settled.
10.1. 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 onlyW.P.(C) No.16778 of 2021 Page 54 of 87
covers advancement to higher position or rank but also
implies advancement to a higher grade. In service law,
the word „promotion‟ has been understood in wider
sense and it has been held that promotion can be either
to a higher pay scale or to a higher post.”
10.2. The decision in Union of India Vrs. Pushpa Rani, (2008)
9 SCC 24 was discussed in Bharat Sanchar Nigam
Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC
510 and the 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.”
10.3. 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
W.P.(C) No.16778 of 2021 Page 55 of 87
sense promotion refers to advancement to a
higher post, in its wider sense, promotion
may include an advancement to a higher pay
scale without moving to a different post. But
the mere fact that both– that is,
advancement to a higher position and
advancement to a higher pay scale– are
described by the common term “promotion”,
does not mean that they are the same. The
two types of promotion are distinct and have
different connotations and consequences.
(ii) Upgradation merely confers a financial
benefit by raising the scale of pay of the post
without there being movement from a lower
position to a higher position. In an
upgradation, the candidate continues to hold
the same post without any change in the
duties and responsibilities but merely gets a
higher pay scale.
(iii) Therefore, when there is an advancement to
a higher pay scale without change of post, it
may be referred to as upgradation or
promotion to a higher pay scale. But there is
still difference between the two. Where the
advancement to a higher pay scale without
change of post is available to everyone who
satisfies the eligibility conditions, without
undergoing any process of selection, it will be
upgradation. But if the advancement to a
higher pay scale without change of post is as
a result of some process which has elements
of selection, then it will be a promotion to a
higher pay scale. In other words,
W.P.(C) No.16778 of 2021 Page 56 of 87
upgradation by application of a process of
selection, as contrasted from an upgradation
simpliciter can be said to be a promotion in
its wider sense, that is, advancement to a
higher pay scale.
(iv) Generally, upgradation relates to and applies
to all positions in a category, who have
completed a minimum period of service.
Upgradation can also be restricted to a
percentage of posts in a cadre with reference
to seniority (instead of being made available
to all employees in the category) and it will
still be an upgradation simpliciter. But if
there is a process of selection or
consideration of comparative merit or
suitability for granting the upgradation or
benefit of advancement to a higher pay scale,
it will be a promotion. A mere screening to
eliminate such employees whose service
records may contain adverse entries or who
might have suffered punishment, may not
amount to a process of selection leading to
promotion and the elimination may still be a
part of the process of upgradation simpliciter.
Where the upgradation involves a process of
selection criteria similar to those applicable
to promotion, then it will, in effect, be a
promotion, though termed as upgradation.
(v) Where the process is an upgradation
simpliciter, there is no need to apply the
rules of reservation. But where the
upgradation involves a selection process and
W.P.(C) No.16778 of 2021 Page 57 of 87
is therefore a promotion, the rules of
reservation will apply.
(vi) Where there is a restructuring of some cadres
resulting in creation of additional posts and
filling of those vacancies by those who
satisfy the conditions of eligibility which
includes a minimum period of service, will
attract the rules of reservation. On the other
hand, where the restructuring of posts does
not involve creation of additional posts but
merely results in some of the existing posts
being placed in a higher grade to provide
relief against stagnation, the said process
does not invite reservation.”
10.4. 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 beW.P.(C) No.16778 of 2021 Page 58 of 87
eligible for the new post. Undoubtedly, the
financial emoluments, as stated above, are much
higher. The third important aspect is that the
appellants had to go through the rigorous of a
specialised training. All these cannot be stated to
be only an exercise of merely re-description or
reorganisation of the cadre. On applying the test in
BSNL case (supra), as per sub-para (i) of
paragraph 29, promotion may include an
advancement to a higher pay scale without moving
to a different post. In the present case, there is a
re-description of the post based on higher pay
scale and a specialised training. It is not a case
covered by sub-para (iii), as canvassed by learned
counsel for the appellants, where the higher pay
scale is available to everyone who satisfies the
eligibility condition without undergoing any
process of selection. The training and the
benchmark of 5 years of service itself involve an
element of selection process. Similarly, it is not as
if the requirement is only a minimum of 5 years of
service by itself, so as to cover it under sub-para
(iv).
18. We have already observed that the complete
factual contours of the difference between the two
posts would have to be examined in the given
factual situation and the triple criteria of minimum
5 years of service, a specialised training and much
higher financial emoluments leaves us in no
manner of doubt. What was done has to be
considered as a promotion disentitling the
appellants to the benefits of the ACP Scheme.
As the very objective of the ACP Scheme, as
W.P.(C) No.16778 of 2021 Page 59 of 87
set out, is “to deal with the problem of
genuine stagnation and hardship faced by
the employees due to lack of adequate
promotional avenues.”
10.5. 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.
W.P.(C) No.16778 of 2021 Page 60 of 87
MACP Scheme has been introduced on the
recommendation of the Sixth Central Pay
Commission which has been accepted by the
Government of India. After accepting the
recommendation of the Sixth Central Pay
Commission, the ACP Scheme was withdrawn and
the same was superseded by the MACP Scheme
with effect from 01.09.2008. This is not some
random exercise which is unilaterally done by the
Government, rather, it is based on the opinion of
the expert body– Sixth Central Pay Commission
which has examined all the issues, various
representations and disparities. Before making the
recommendation for the Pay Scale/Revised Pay
Scale, the Pay Commission takes into
consideration the existing pay structure, the
representations of the Government servants and
various other factors after which the
recommendations are made. When the expert body
like Pay Commission has comprehensively
examined all the issues and representations and
also took note of inter-departmental disparities
owing to varying promotional hierarchies, the court
should not interfere with the recommendations of
the expert body. When the Government has
accepted the recommendation of the Pay
Commission and has also implemented those, any
interference by the court would have a serious
impact on the public exchequer.
30. Observing that it is the function of the Government
which normally acts on the recommendations of
the Pay Commission which is the proper authority
to decide upon the issues, in Union of India Vrs.
W.P.(C) No.16778 of 2021 Page 61 of 87
P.V. Hariharan, (1997) 3 SCC 568, it was held as
under:
„5. *** It is the function of the Government which
normally acts on the recommendations of a
Pay Commission. Change of pay scale of a
category has a cascading effect. Several
other categories similarly situated, as well as
those situated above and below, put forward
their claims on the basis of such change. The
Tribunal should realise that interfering with
the prescribed pay scales is a serious matter.
The Pay Commission, which goes into the
problem at great depth and happens to have
a full picture before it, is the proper authority
to decide upon this issue. Very often, the
doctrine of „equal pay for equal work‟ is also
being misunderstood and misapplied, freely
revising and enhancing the pay scales across
the board. We hope and trust that the
Tribunals will exercise due restraint in the
matter. Unless a clear case of hostile
discrimination is made out, there would be no
justification for interfering with the fixation of
pay scales. We have come across orders
passed by Single Members and that too quite
often Administrative Members, allowing such
claims. These orders have a serious impact
on the public exchequer too. It would be in the
fitness of things if all matters relating to pay
scales, i.e., matters asking for a higher pay
scale or an enhanced pay scale, as the case
may be, on one or the other ground, areW.P.(C) No.16778 of 2021 Page 62 of 87
heard by a Bench comprising at least one
Judicial Member. ***‟
31. Observing that the decision of expert bodies like
the Pay Commission is not ordinarily subject to
judicial review, in State of U.P. Vrs. U.P. Sales Tax
Officers Grade II Association, (2003) 6 SCC 250,
the Supreme Court held as under:
„11. There can be no denial of the legal position
that decision of expert bodies like the Pay
Commission is not ordinarily subject to
judicial review obviously because pay
fixation is an exercise requiring going into
various aspects of the posts held in various
services and nature of the duties of the
employees. ***.‟
32. In Secretary, Government (NCT of Delhi) Vrs.
Grade-1 Officers Association, (2014) 13 SCC 296,
the Supreme Court refused to interfere with the
ACP Scheme as it would violate Government policy
and since exercise of judicial review would not be
proper, upheld the ACP Scheme and the conditions
therein.
33. In State of Tamil Nadu Vrs. S. Arumugham, (1998)
2 SCC 198, the Supreme Court has observed that
the Government has the right to frame a policy to
ensure efficiency and proper administration and to
provide to suitable avenues for promotion to
officers working in different department. The
Supreme Court has further observed that the
Tribunal cannot substitute its own views for the
W.P.(C) No.16778 of 2021 Page 63 of 87
views of the Government or direct new policy
based on the views of Tribunal.
34. Observing that fixation of pay and determination of
responsibilities is a complex matter which is for the
executive to take a decision, the courts should
approach such matters with restraint, in State of
Haryana Vrs. Haryana Civil Secretariat Personal
Staff Association, (2002) 6 SCC 72, the Supreme
Court held as under:
„10. It is to be kept in mind that the claim of equal
pay for equal work is not a fundamental right
vested in any employee though it is a
constitutional goal to be achieved by the
Government. Fixation of pay and
determination of parity in duties and
responsibilities is a complex matter which is
for the executive to discharge. While taking a
decision in the matter, several relevant
factors, some of which have been noted by
this Court in the decided case, are to be
considered keeping in view the prevailing
financial position and capacity of the State
Government to bear the additional liability of
a revised scale of pay. *** That is not to say
that the matter is not justiciable or that the
courts cannot entertain any proceeding
against such administrative decision taken
by the Government. The courts should
approach such matters with restraint and
interfere only when they are satisfied that
the decision of the Government is patently
irrational, unjust and prejudicial to a section
of employees and the Government while
W.P.(C) No.16778 of 2021 Page 64 of 87
taking the decision has ignored factors which
are material and relevant for a decision in the
matter. Even in a case where the court holds
the order passed by the Government to be
unsustainable then ordinarily a direction
should be given to the State Government or
the authority taking the decision to
reconsider the matter and pass a proper
order. The court should avoid giving a
declaration granting a particular scale of pay
and compelling the Government to implement
the same. ***.‟
35. The prescription of Pay Scales and incentives are
matters where decision is taken by the
Government based upon the recommendation of
the expert bodies like Pay Commission and several
relevant factors including financial implication and
court cannot substitute its views. As held in
Haryana Civil Secretariat Personal Staff
Association (2002) 6 SCC 72, the court should
approach such matters with restraint and interfere
only when the court is satisfied that the decision of
the Government is arbitrary. Even in a case where
the court takes the view that order/Scheme
passed by the Government is not an equitable one,
ordinarily only a direction could be given to the
State Government or the authority for
consideration of the matter and take a decision. In
the present batch of cases where the respondents
are claiming financial upgradation in the Grade
Pay of promotional hierarchy, no grounds are
made out to show that the MACP Scheme granting
financial upgradation in the next Grade Pay is
W.P.(C) No.16778 of 2021 Page 65 of 87
arbitrary and unjust; warranting interference. The
implementation of the MACP Scheme is claimed to
have led to certain anomalies; but as pointed out
earlier, MACP Scheme itself is not under
challenge.”
11. 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.
11.1. 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
W.P.(C) No.16778 of 2021 Page 66 of 87
are made available counted from the direct entry grade
on completion of 10, 20 and 30 years of service in a
single Cadre in the absence of promotion. In terms
thereof an employee:
(a) on completion of 10 years of service in the entry
grade, will be considered for the first upgradation
under the RACPS;
(b) on completion of 20 years of service and having
got only one upgradation either by promotion or
by RACPS, will be considered for the second
upgradation;
(c) likewise on completion of 30 years of service and
having got two upgradations either by RACPS or
promotion or both will be considered for third
upgradation under the RACPS.
11.2. 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
W.P.(C) No.16778 of 2021 Page 67 of 87
introduction of the RACPS, the ACP Scheme under the
ORSP, 2008, ceased to be operational.
11.3. Further, under Paragraph 4 thereof, it was stipulated
that there will be a Screening Committee to decide the
eligibility of persons for upgradation under the RACPS.
11.4. 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
W.P.(C) No.16778 of 2021 Page 68 of 87
Grade Pay corresponding to the Pay Band of
promotional hierarchy.
12. As admitted by the opposite parties in their counter
affidavit that Sri Anam Charana Behera, a Check Gate
Clerk was given promotion to the post of “Weigh Bridge
Clerk” and the Director of Mines way back in 2014 in
supplying information to the applicant under the Right
to Information Act, 2005 that the post of Weigh Bridge
Supervisor is the promotional hierarchy of Check Gate
Clerk/Tally Clerk and the Weigh Bridge Supervisor
has the hierarchy of promotion to the post of
Transport Supervisor. At this juncture it may be
apposite to have reference to Paragraph 10 of the
RACPS, wherein it has been envisaged that,
“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”.
Even if it is construed that the post of Check Gate
Clerk/Tally Clerk is ex-Cadre/isolated post, as
asserted in the counter affidavit, the petitioner would
be entitled to the next higher Grade Pay as per the
First Schedule of the ORSP Rules, 2008.
W.P.(C) No.16778 of 2021 Page 69 of 87
12.1. Reliance placed on Point No.13 of the Finance
Department Clarification dated 20.01.2014 by the
Additional Government Advocate is misplaced and
misconceived. Said point of clarification does not deal
with ex-Cadre, but it deals with the meaning of Cadre.
Even if such Clarification is taken into account,
“Example” as appended thereto may have relevant to
take note of. Said Example reads as follows:
“Example:
1) The Industries Promotion Officers (IPOs) get
promotion to the post of Assistant Directors of
Industries, Assistant Engineers, Assistant
Managers of different functional disciplines of
District Industries Centres etc. But, the post of
IPOs are not the Cadre post of the Assistant
Directors of industries. Assistant Engineers,
Assistant Managers etc. because these posts
belong to „The Orissa Industries Service Rules,
1985‟ whereas the post of IPOs does not belong to
„The Orissa Industries Service Rules, 1985‟.
Therefore, the post of IPOs shall not be considered
as the Cadre post of the Orissa industries Service
for the purpose. of RACPS.”
12.2. With respect to the post of Industrial Promotion Officer
as reflected in the Example mentioned above, this
Court in a Division Bench in the matter of Additional
Chief Secretary to Government and Others Vrs. Sunil
W.P.(C) No.16778 of 2021 Page 70 of 87
Pattanayak and another, W.P.(C) No.3460 of 2017 vide
Order dated 03.05.2017 observed as follows:
“Heard Mr. M.S. Sahu, learned Additional Government
Advocate for the petitioners and Mr. Asok Mohanty,
learned Senior Advocate for opposite party No.1.
The State functionaries being the petitioners have
assailed the Order dated 27.10.2014 passed by the
Odisha Administrative Tribunal in O.A. No. 338 of 2014,
wherein the Tribunal directed for sanction and disburse
of the benefit under RACP scheme (2nd and 3rd
financial up-gradation) to the applicant. The petitioners
have also challenged the Order dated 19.08.2 015
passed in R.P. No.01 of 2015 and L.P. No.01 of 2015,
wherein the review application of the petitioners were
rejected by the Tribunal.
The opposite party No.1, being the applicant has filed
the aforementioned Original Application challenging the
order of cancellation of sanction of RACP with prayer to
sanction and disburse the scale of pay with Grade Pay
of the promotional post under RACP Scheme to the
applicant. It has been contended before the Tribunal
that the applicant joined as Industrial Promotion Officer
(IPO) on 22.08.1983. On completion of 15 years of
service, he was extended with the benefit of TBA under
ORSP Rules, 1998. He was also extended with the
benefit of ACP on completion of 25 years of service
under ORSP Rules, 2008. However, he has not been
extended the benefit of Revised ACP under RACP
Scheme as per Government Resolution dated
06.02.2013 which came into force with effect from
01.01.2013, although, he completed 30 years of service.
W.P.(C) No.16778 of 2021 Page 71 of 87
According to the applicant the said Government
Resolution provides that there shall be three financial
up-gradation on completion of 10/20/30 years of
service in a single Cadre. Rule 7 of the Orissa Industrial
Service Rules, 1985 reveals that not more than 50% of
the total vacancies in Class-II of the service in any year
may be filled up by promotion from among non-gazetted
non-ministerial Class-III field executive staff namely,
Industries Promotion Officers, Industrial Supervisor in
Grade Pay of Rs.500-930/- or as revised from time to
time and such other posts as may be created in the
equivalent grade or declared equivalent in status by
Government from time to time having completed 7 years
of service in the post. The Promotion quota of Industries
Promotion Officers, Industrial Supervisors shall be in
and according to the strength of qualified of officers in
each group as may be decided by Government. The
applicant being Industries Promotion Officer,
promotional hierarchy of the said post is Assistant
Manager/Assistant Director and above in Class-II
service. Since, he has not been extended such
promotional avenue on completion of 30 years he is
entitled to get the 3rd financial up-gradation under
RACP Scheme. Parawise comment has been filed on
behalf of the present petitioners before the Tribunal
admitting the above fact regarding promotional
hierarchy basing on the seniority maintained in the
gradation list by Director of Industries, Orissa. The
Tribunal after going through the materials available on
records and the arguments advanced by the parties
came to a conclusion that the applicant has already
been extended with the benefit of TBA on completion of
15 years of service and 2nd ACP on completion of 25
years of service in one post/cadre. He has already
W.P.(C) No.16778 of 2021 Page 72 of 87
completed 30 years of service in the same post/grade,
accordingly he is entitled to get the 3rd RACP as the
post held by the applicant is not an isolated/ex-cadre
post and the post of IPO has the promotional avenue
and hierarchy. The Tribunal passed the order
accordingly. Learned Additional Government Advocate
submits that the Tribunal has not taken into
consideration Clause-10 of the RACP Scheme and
passed the impugned order and as such the order is
liable to be interfered with.
Learned counsel for opposite party No.1 submits that
the same contention was raised by the petitioners in
W.P.(C) No.2831 of 2016 which has been disposed of on
27.06.2016 by which Clause-10 has been interpreted
by the Court and held that the scheme is clear and the
RACP is available to an employee having promotional
hierarchy. The said ratio is applicable to the present
case. The records of W.P.(C) No.2831 of 2016 were
called for and perused.
It is not disputed that the said ratio is applicable to the
present case. Since the post of IPO has promotional
hierarchy, the Tribunal has rightly allowed the
Original Application and directed the petitioners to
extend the benefit under the Scheme to the applicant.
There is no error apparent on the face of the record and
as such, we are not inclined to interfere with the same.
The writ petition stands dismissed accordingly.”
12.3. A Division Bench of this Court in State of Odisha Vrs.
Sujata Rani Sahu, 2022 SCC OnLine Ori 950 in a case
of isolated post has been pleased to observe as follows:
W.P.(C) No.16778 of 2021 Page 73 of 87
“2.1. *** As per the ORSP Rules, 1998, she was granted
1st TBA on completion of 15 years of service in the
scale of Rs.8000-13500/-. Subsequently, under
the ORSP Rules, 2008, her pay was revised w.e.f.
01.01.2006 in pay band-2 of Rs.9300-34800/-
with Grade Pay of Rs.5400/-.As per G.A.
Department order no.483/2014 dated
08.07.2013, opposite party No.1 came under
Group-A and by that time RACP scheme had come
into force w.e.f. 06.02.2013, which provided three
financial upgradations counted from the direct
entry grade on completion of 10, 20 and 30 years
of service in a single cadre in absence of
promotion. The post of Sociologist is an
isolated post and there is no promotional
avenue and, as such, under the RACPs, an
employee continuing in isolated post, without
promotional hierarchy, is entitled to next higher
Grade Pay as per the first schedule of ORSP
Rules, 2008 with interpolations if any introduced
subsequently. As opp. party No.1 was holding an
isolated post, she was allowed second financial
upgradation w.e.f. 01.01.2013 fixing her pay at
Rs.24230/- with Grade Pay of Rs.6600/- in the
scale of pay of Rs.9300-34800/- as per the order
No.16759 dated 11.09.2014.
2.2 As per the stipulation made in para-10 of the
RACP Resolution dated 06.02.2013, the
employees in isolated/ex-cadre post, having no
promotional hierarchy, will have to 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 GradeW.P.(C) No.16778 of 2021 Page 74 of 87
Pay corresponds to a different pay band, the
employees will get the pay band corresponding to
the revised Grade Pay. Even though opposite
party No.1 was extended with the benefit of
financial upgradation with Grade Pay of
Rs.6600/-, she was not paid the corresponding
pay scale of Rs.15,600/- to Rs.39,100/-. Claiming
the scale of pay of the corresponding Grade Pay of
Rs.6,600/-, she made several representations, but
when no action was taken, she filed O.A. No. 416
of 2015 before the Odisha Administrative
Tribunal, Bhubaneswar. When the matter was
pending, the State-petitioners withdrew the Grade
Pay of Rs.6600/- vide Order No.20320 dated
19.11.2015, for which opposite party No.1 filed
O.A. No. 3039 of 2015 seeking to quash the said
Order.
2.3 The Tribunal heard both the O.As filed by opposite
party No.1 together and disposed of the same vide
a common order/judgment dated 17.07.2017,
order portion of which is extracted hereunder:
„8. In view of the above discussion, the O.As are
allowed. The Order dated 11.09.2015 vide
annexure-8 is quashed and the order
granting Grade pay of Rs.6,600/- vide order
dated 11.04.2014 is restored. Consequently
the respondents are directed to grant the
corresponding scale of pay in Pay Band-3 of
Rs.15,600-39,100/- and fix up her pay
accordingly with effect from 01.01.2013, as
has been done in the case of Bidyut Kumar
Sahoo, within a period of three moths from
the date of receipt of a copy of this order. The
W.P.(C) No.16778 of 2021 Page 75 of 87
differential amount be calculated and paid to
her within the said period.‟2.4 Challenging the aforesaid common order/
judgment dated 17.07.2017 passed in O.A. No.
416 of 2015 and O.A. No. 3039 of 2015, the State
and its functionaries have filed the above noted
two separate writ petitions before this Court.
***
6. Having heard learned counsel for the parties
and after going through the records, the only
question to be decided by this Court is
whether opposite party No.1, who is working
in an isolated post, i.e., Sociologist, is
entitled to get Grade Pay of Rs.6600/- in the
corresponding pay band of Rs.15600-39100/-
and if so whether the State-petitioners are
justified in withdrawing such benefit?
***
7. As a matter of fact, opposite party No.1 was
working as Sociologist, which is an isolated post.
There being no promotional avenue, RACP is the
only source for her to get the benefit of higher
scale of pay, due to stagnation of her promotional
benefits.
***
8. In Col. B.J. Akkara (Regd.) Vrs. Govt. of India,
(2006) 11 SCC 709, the apex Court held that a
“pay scale” has basically three elements. The first
is the minimum pay or initial pay in the pay scale.
W.P.(C) No.16778 of 2021 Page 76 of 87
The second is the periodical increment. The third is
the maximum pay in the pay scale. An employee
starts with the initial pay in the pay scale and
gets periodical increases (increments) and reaches
the maximum or ceiling in the pay scale. Each
stage in the pay scale starting from the initial pay
and ending with the ceiling in the pay scale, when
applied to an employee is referred to as “basic
pay” of the employee. Whenever the Government
revises the pay scales, a fitment exercise takes
place as per the principle of fitment (formula)
provided in the rules governing the revision of pay
so that the “basic pay” in the old scale is
converted into a “basic pay” in the revised pay
scale.
9. In Gurpal Tuli Vrs. State of Punjab, 1984 (Supp.)
SCC 716 : AIR 1984 SC 1901, the apex Court held
that to be entitled to draw a particular pay scale
the employee must fulfil the eligibility conditions
whether by way of qualification or otherwise.
10. In St. Stephen‟s College Vrs. University of Delhi,
(1992) 1 SCC 558 : AIR 1992 SC 1630, the apex
Court held that public services comprise different
grades of employees. It is basically a hierarchical
system. The pay scales are framed in a
descending order viz., the highest scale is
prescribed for the highest grade and thereafter
followed by lower scales attached to the
descending grades of service. This is consistent
with Article 14 of the Constitution which mandates
that unequals cannot be treated as equals.
W.P.(C) No.16778 of 2021 Page 77 of 87
11. In State Bank of India Vrs. K.P. Subbaiah, (2003)
11 SCC 646 = AIR 2003 SC 3016, the apex Court
has observed that since public service comprise
different grades, different pay scales are provided
for different grades and as such the pay of an
employee is fixed with reference to a pay scale.
12. In State of U.P. Vrs. J.P. Chaurasia, (1989) 1 SCC
121 = AIR 1989 SC 19, the apex Court held that
the fixation of pay scales is essentially an
executive function. The answer to the question
whether an officer or a group of officers is entitled
to a particular scale depends upon several factors.
It requires evaluation of duties and responsibilities
of posts and should be determined by expert
bodies like the Pay Commission. The Pay
Commission would be the best judge to evaluate
the nature of duties and responsibilities of posts. If
there is any such determination by a Commission
or Committee, the Court should normally accept it.
13. In Delhi Veterinary Association Vrs. Union of India,
(1984) 3 SCC 1 = AIR 1984 SC 1221, the apex
Court held that although it is primarily the function
of the Pay Commission to determine matters
relating to pay structure and to apply such norms
as are proper and relevant, certain “basic
principles” are to be followed in fixing pay scales
of various posts and cadres in the Government
service. The apex Court considered the matter both
from the point of view of the employees and the
employer. As far as the employees are concerned,
the apex Court observed as follows:
W.P.(C) No.16778 of 2021 Page 78 of 87
„The degree of skill, strain of work, experience
involved, training required, responsibility
undertaken, mental and physical requirements,
disagreeableness of the task, hazard attendant on
work and fatigue involved are, according to the
Third Pay Commission, some of the relevant
factors which should be taken into consideration
in fixing pay scales. The method of recruitment,
the level at which the initial recruitment is made in
the hierarchy of service or cadre, minimum
educational and technical qualifications prescribed
for the post, the nature of dealings with the public,
avenues of promotion available and horizontal and
vertical relativity with other jobs in the same
service or outside are also relevant factors.‟As far as the employers are concerned the apex
Court said:
„At the same time while fixing the pay scales, the
paying capacity of the Government, the total
financial burden which has to be borne by the
general public, the disparity between the incomes
of the Government employees and the incomes of
those who are not in Government service and the
net amount available for Government at the
current taxation level, which appears to be very
high when compared with other countries in the
world, for developmental purposes after paying
the salaries and allowances to the Government
servants have also to be borne din mind. These
are, however, not exhaustive of the various
matters which should be considered while fixing
the pay scales. There may be many others
including geographical considerations.‟
W.P.(C) No.16778 of 2021 Page 79 of 87
Then the apex Court referred to certain broad and
general considerations which a Pay Commission
ought to have in mind.
„In an egalitarian society based on planned
economy it is imperative that there should be an
evolution and implementation of a scientific
national policy of incomes, wages and prices
which would be applicable not merely to
Government services but also to the other sectors
of the national economy. As far as possible the
needs of a family unit have to be borne in mind in
fixing the wage scales. The „needs‟ are not static.
They include adequate nutrition, medical facilities,
clothing, housing, education, cultural activities etc.
Any provision made while fixing the pay scales for
the development of a society of healthy and well
educated children irrespective of the economic
position of the parents is only an investment and
not just an item of expenditure. In these days of
galloping inflation, care should also be taken to
see that what is fixed today as an adequate pay
scale does not become inadequate within a short
period by providing an automatic mechanism for
the modification of the pay scale.‟
14. In Secretary, Finance Department Vrs. West
Bengal Registration Service Association, 1993
Supp. (1) SCC 153 = AIR 1992 SC 1203, the apex
Court held that ordinarily a pay structure is
evolved keeping in mind several factors e.g. (i)
method of recruitment, (ii) level at which
recruitment is made, (iii) the hierarchy of service in
a given cadre, (iv) minimum educational and
technical qualifications required, (v) avenues of
W.P.(C) No.16778 of 2021 Page 80 of 87
promotion, (vi) the nature of duties and
responsibilities, (vii) the horizontal and vertical
relativities with similar jobs, (viii) public dealings,
(ix) satisfaction level, (x) employer‟s capability to
pay, etc. Several factors have to be kept in view
while evolving a pay structure and the horizontal
and vertical relativities have to be carefully
balanced keeping in mind the hierarchical
arrangements, avenues for promotion, etc. Such a
carefully evolved pay structure ought not to be
ordinarily disturbed as it may upset the balance
and cause avoidable ripples in other cadres as
well.
15. 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 no 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.”
12.4. 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:
W.P.(C) No.16778 of 2021 Page 81 of 87
“A careful perusal of the RACPS introduced by the
resolution of the FD dated 6th February 2013 reveals
that even while introducing the said RACPS, the
Government considered the recommendations of the
fitment committee and the prevalent system of granting
TBA under the ORSP Rules, 1998 as well as the ACP
under the ORSP Rules, 2008. The RACPS Resolution
acknowledges in its preamble that the Central
Government had introduced the MACPS. Therefore,
something similar had to be introduced in the State
Government. Therefore, the RACPS was being
introduced as a Career Advancement Scheme. The
purpose of granting of financial upgradations was the
absence of a promotional avenue to an employee who
has remained over a long period of time in the same
cadre. There are as many as 18 paragraphs in the
RACPS. The grant of earlier benefits was clearly not
seen as bar to receipt of the benefit under the RACPS.
For instance, in Paragraph 18, it is clarified as under:
„Assured Career Progression (ACP) availed under
ORSP Rules, 2008 shall not be taken into account
while considering the RACPS in favour of an
employee.‟ ***”
12.5. So, it would now be established that an Office
Memorandum cannot “clarify” the RACPS Resolution
dated 6th February 2013 which is of a legislative
character. Vide, State of Odisha Vrs. Bikash Ranjan
Dash, 2021 SCC OnLine Ori 1839.
12.6. Much stress has been laid on the decision of this
Court rendered in State of Odisha Vrs. Bihari Lal, 2016
W.P.(C) No.16778 of 2021 Page 82 of 87
SCC OnLine Ori 333, wherein it has been observed as
follows:
“16. From the aforesaid analysis of the RACP of
Paragraph 10 it is clear that the pay will be fixed
under the ORSP Rules, 2008, but the modalities
for awarding RACP would be given under this
Scheme. On clear harmonious interpretation of
Paragraph 10 it is found that the employees of
cadre having promotional hierarchy will get Grade
Pay of the promotional post and in case the new
Grade Pay corresponds to a different Pay Band,
the employee will get Pay Band corresponding to
upgraded Grade Pay. Here the learned Addl.
Government Advocate drew our attention to a
clarification issued by the State Government in the
Finance Department on 20.1.2014 at Paragraph
12. According to said Paragraph 12 the Grade Pay
of promotional post which belongs to other cadre
shall not be allowed under RACP Scheme even if
the former post being only the feeder post of that
promotional post and the RACP is confined to the
cadre only. He further stated that it has been
further clarified in Paragraph 12 that such
promotion shall be to an ex-cadre post and the
period of service for RACP on that promotional post
shall be reckoned afresh from the date of joining in
that post. Such clarification is absolutely contrary
to Paragraph 10 of the RACP Scheme because
Paragraph 12 has denied benefit of RACPS to the
employee entitled to promotional avenue under
recruitment Rules, whereas Paragraph 10 of
RACPS allow same. If clarification is contrary
to scheme, scheme has to be followed.
W.P.(C) No.16778 of 2021 Page 83 of 87
Clarification has no any legislative value,
whereas a scheme being in absence of rule
has got binding effect and to be followed by
all in the Administration. Clarification by
State Government has no legal force unless it
is converted to an Act, Rules, Regulation or
Scheme or culminates from such Act, Rules,
Regulation and Scheme. Be that as it may, the
Scheme is clear that the RACP is available to an
employee having promotional hierarchy. We are of
the view that opposite party No.1 as V.L.W.
(Village Level Worker) being not promoted to the
post of G.P.E.O. (Grama Panchayat Extension
Officers) and P.A. (Progress Assistants) is entitled
to RACP Scheme and as such ORSP Rules, 2008
will be applicable to them.”
12.7. Said Bihari Lal‟s case (supra), was carried to the
Hon’ble Supreme Court of India, being State of Odisha
Vrs. Bihari Lal Barik, SLP(C) Diary No.20358 of 2017.
Said case has come to be disposed of by Order dated
23rd August, 2017 in the following terms:
“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.16778 of 2021 Page 84 of 87
13. The conspectus of the above delineated principles laid
down by the Courts read along with the facts of the
present case with respect to ex-Cadre post with
hierarchical positions discussed above by referring to
RACPS under the ORSP Rules, as conceded by the
opposite parties in the counter affidavit, makes it
unambiguous that the petitioner is entitled to the
benefits as claimed for.
Conclusion:
14. Having regard to decisions of this Court vide Order
dated 03.05.2017 in Additional Chief Secretary to
Government and Others Vrs. Sunil Pattanayak and
another, W.P.(C) No.3460 of 2017; State of Orissa Vrs.
Bihari Lal Barik, W.P.(C) No.2831 of 2016, disposed of
on 27.08.2016 reported as State of Odisha Vrs. Bihari
Lal, 2016 SCC OnLine Ori 3332; and State of Odisha
Vrs. Sujata Rani Sahu, 2022 SCC OnLine Ori 950 there
is no other option left for this Court than take a
different view, but to hold that even ex-Cadre/isolated
post holders are entitled to be extended with the
benefit of RACPS under the ORSP Rules.
14.1. On the premise that the petitioner, Tally Clerk, as
indicated by the Director of Mines while supplying
2 Challenge against Judgment of this Court in SLP(C) Diary No.20358 of 2017
got dismissed vide Order dated 23rd August, 2017 of the Hon’ble Supreme
Court of India.
W.P.(C) No.16778 of 2021 Page 85 of 87
information way back in the year 2014 that the
promotional avenue of such post would be the Weigh
Bridge Supervisor and thereafter the Transport
Supervisor, and on an occasion one Sri Anam Charana
Behera, a Check Gate Clerk, could be given the post of
the Weight Bridge Supervisor, considering it to be
promotional one, there is no scope for the opposite
parties at this stage to deny the benefit. The petitioner
being not given any promotional post though he
worked since 1996 as Tally Clerk, he is entitled to get
the legitimate pay under the RACPS as was accorded
by the Office Order No.455/Mines, dated 16.03.2017
(1st RACP) and Order No.2036/Mines, dated
06.11.2017 (Pay Fixation).
14.2. In view of discussions made supra, the interpretation
laid with respect to points of Clarification dated
20.01.2014 of the Finance Department vis-à-vis
Resolution dated 06.02.2013 and principles
emphasised in different case laws referred to and
relied on in the foregoing paragraphs unequivocally
leads to demonstrate that the reasoning ascribed to in
Office Order 559/Mines, dated 07.04.2021 issued by
the Deputy Director of Mines (Annexure-6) cancelling
the RACPS and Pay Fixation given in the year 2017
with effect from 01.01.2013 following instructions of
W.P.(C) No.16778 of 2021 Page 86 of 87
the Director of Mines, Odisha vide Letter dated
18.03.2021 (Annexure-4), deserves to be nullified.
14.3. In fine, this Court sets aside Office Order 559/Mines,
dated 07.04.2021 issued by the Deputy Director of
Mines (Annexure-6) and instructions of the Director of
Mines, Odisha vide Letter dated 18.03.2021
(Annexure-4) and issues writ of mandamus to the
opposite parties to restore the position in terms of the
Office Order No.455/Mines, dated 16.03.2017 and
Order No.2036/Mines, dated 06.11.2017 with respect
to RACPS and Pay Fixation as was accorded to the
petitioner forthwith.
14.4. Needless to observe that the opposite parties shall also
give consequential effect of this judgment to the
petitioner.
15. The writ petition stands disposed of with the above
terms, but in the circumstances there shall be no
order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: LAXMIKANT
MOHAPATRA High Court of Orissa, Cuttack
Designation: Senior Stenographer
Reason: Authentication The 30th January, 2025//Laxmikant/Suchitra
Location: High Court of Orissa,
Cuttack
Date: 30-Jan-2025 14:51:51
W.P.(C) No.16778 of 2021 Page 87 of 87
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