Bikash Ranjan Mohanty Vs the Commnr. Cum Secry., Information and Pr Dept.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.24225 of 2021

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Bikash Ranjan Mohanty …. Petitioner

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Mr. Kali Prasanna Mishra, Sr. Advocate along with Mr. Adyasidhi Mishra, Advocate and Mr. A. Mohapatra, Advocate

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-versus-

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…. The Commissioner-cum-Secretary to the Opposite Parties Government, Information and Public Relations Department, Odisha, Bhubaneswar and others

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Ms. Saswata Pattnaik, AGA

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CORAM:

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HON’BLE MR. JUSTICE MURAHARI SRI RAMAN

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Order No. 08.

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ORDER 02.09.2024

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This matter is taken up through Hybrid Mode.

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The petitioner, working as Clerk- cum -Librarian in the Office of the District Information and Public Relations Officer, Cuttack having completed 20 years of service, approached this Court by way of filing this writ petition to issue direction to the opposite parties for providing benefits/grade pay as per Revised Assured Career Progression (“RACP”, for short) Scheme vide Finance Department Resolution dated 06.02.2013 craving to invoke extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India with the following prayer(s):

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“Therefore, it is humbly prayed that this Hon’ble Court

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may graciously be pleased to;

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i. Admit and allow this writ petition with an exemplary cost;

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ii. Direct/order to the State Opp. Parties to implement the order dated 05.05.2018 passed in O.A. No.1128 of 2015(Annexure-1) Read With order of this Hon’ble High Court passed in W.P.(C) No.2783 of 2018 (Annexure-2) and Order of the Supreme Court passed in SLP No.11137/2020 (Annexure-3).

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iii. Such other order/orders as the Hon’ble High Court deem fit and proper for the interest of justice.

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And for this act of kindness the petitioner as in duty bound shall ever pray.”

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Facts as adumbrated in the writ petition reveal that the Government of Odisha has formulated Odisha Information Service (Junior Branch) (Method of Recruitment and Conditions of Service) Rules, 2009 to regulate the method of recruitment and conditions of service of persons appointed to the Odisha Information Service. In terms of Section 4(1)(b) of said Rules, it is stipulated that 25% of the posts would be filled up by way of promotion from the posts of Clerks- cum -Librarian, Junior Store Keepers, Junior Typists-cumStore Keeper proportionately with reference to their respective cadre strength. Therefore, it is submitted that in the year 2013, the Government of Odisha in Finance Department issued Resolution on 06.02.2013, whereby provisions are made for Revised Assured

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Career Progression Schemes (RACPS) for the State Government employees.

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3.1. In terms of such Scheme, the Government employees on completing 15, 25 and 30 years of service in same cadre/post are extended the benefits of Grade Pay attached to the next promotional avenue. The petitioner submitted that he is eligible to get the benefit under the said Scheme having completed for more than 20 years of service in the same post having promotional avenue. But due to stagnation in the promotional post, he has not been extended the same benefit before the date of his superannuation.

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3.2. It is brought to the notice of this Court that the present petitioner along with other employees approached the learned Odisha Administrative Tribunal by filing O.A. Nos.1128, 1258, 1175, 1257, 1287, 1288, 1189, 1190, 2698, 2699 and 1313 of 2015 for direction to the State Government to grant such benefits under the RACPS. Learned Tribunal vide order dated 05.05.2018 disposed of the Original applications taking into consideration the facts and rival contentions and passed the following order:

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“***7. The only ground on which the Grade Pay of the promotional post has not been extended to the applicants are that the posts which the applicants are holding, are isolated post and there is no promotional hierarchy. It is, however, not disputed that the posts which the applicant is holding, is feeder cadre posts for promotion to the post of Sub Divisional Information and Public Relation Officers and other posts as shown in Rule-3. Learned Government Advocate submitted that

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all those promotional posts borne in a separate cadre and therefore, the applicant is not entitled to the benefits of the Grade Pay of the promotional post borne in a different cadre.

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Rule-11 of the Odisha Service Code defines the meaning of cadre “which means strength of a service or part of a service sanctioned as a separate unit.” The clarification issued by the Government in Finance Department in Para-12 dtd.20.01.2014 is not in accordance with the definition provided in the statutory rule. It may be noted that the issue regarding sanction of grade pay of the promotional post born in a different cadre, and the employees in the feeder cadre who will not get the Grade Pay of the promotional post, have already been settled in the decision of the Tribunal in O.A. No.520/2014 and batch, which has been confirmed by the Hon’ble High Court in W.P.(C) No.2831/2016. Admittedly the posts, which the applicant is now holding, is the feeder cadre posts for promotion to the post mentioned in Rule-3 of the Odisha Information Service (Jr. Branch) (Method of Recruitment and Conditions of Service) Rules, 2009 and thus, there is promotional hierarchy of the posts, which the applicant is holding.

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Thus, in view of the settled position, the applicant cannot be denied benefit of the Grade Pay in the promotional post and the Grade Pay of Rs.2200/-, which

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has been given to the applicant treating the post as isolated post is illegal and consequently the applicant is entitled to the benefit of Grade Pay of the promotional post i.e. Rs.4,200/-, Rs.4,600/- and Rs.4,800/- on completion of 10, 20 and 30 years of service. Accordingly, the impugned order vide Annexure-8 & 8/1 in O.A. No.1128/2015 (Bikash Ranjan Mohanty), Annexure-8 & 8/1 in O.A. No.1190 of 2015 (Pradipta Kumar Senapati) and Annexure-8 in O.A. No.1189 of 2015 (Surendra Kumar Sahoo) are quashed and the respondent authorities are directed to extend the benefit of Grade Pay as indicated above and such benefit be extended to the applicants within a period of three months from the date of receipt of a copy of this order. With these orders, the O.As. are disposed of. “

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3.3. The State Government moved this Court in respect of four employees in writ petition(s) challenging the order of the learned Odisha Administrative Tribunal, namely, Gobardhan Biswal in W.P.(C) No.2783 of 2018 relating to O.A. No.1258 of 2015, Bidyapati Panda in W.P.(C) No.2809 of 2018 relating to O.A. No.1175 of 2015, Raghunath Sethy in W.P.(C) No.2810 of 2018 relating to O.A. No.1287 of 2015 and Saroj Kumar Satpathy in W.P.(C) No.2784 of 2018 pertaining to O.A. No.1288 of 2015. This Court vide order dated 07.11.2019 dismissed the writ petitions and passed the following order:

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“***The Tribunal has only followed the earlier decision dated 12.3.2015 passed in O.A. No.520 of 2014, paragraph-5 of which reads as under:

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“5. Mr. Ajit Rath, Mr. R. Mohanty and Mr. U.C. Mohapatra, learned counsel for the applicants further submitted that in Agriculture Department there is a post of Village Agriculture Worker (VAW), which is a district cadre post, just similar to the post of VLW. The post of VAW is a feeder post for promotion to the post of Agriculture Overseer, which is a State cadre post and further promotion to the post of Assistant Agriculture Officer. Such Village Agriculture Workers have been given RACP benefit on completion of 10 years and 20 years i.e. grade pay of Rs.4200/- and Rs.4600/- from the existing grade pay of Rs.2000/-. As the benefit of financial upgradation under RACPS has been allowed in the case of Village Agriculture Workers working under the Agriculture Department, who are having similar type of promotional avenues as that of the Village Level Workers, the clarification given by the Finance Department at Annexures-3 and 4 are liable to be declared as discriminatory.”

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Against the said order, a writ petition was filed being W.P.(C) No.2831 of 2016 which came to be dismissed on 27.06.2016. Against the said order of dismissal, SLP preferred in the Hon’ble Supreme Court was also dismissed.

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Learned Additional Government Advocate, however, submitted that the aforesaid judgment is not applicable to the case at hand.

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But, on perusal of record, it appears that the State counsel had not raised this contention before the Tribunal. In that view of the matter, while exercising power under Article 227 of the Constitution of India, it will be difficult for us to hold that the

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Tribunal has committed any error. If that such contention was not raised before the Tribunal, it will not be appropriate to consider the same at this stage.

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Accordingly, the writ petition stands dismissed”

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3.4. The State Government has carried the said matter to the Hon’ble Supreme Court of India in SLP (C) No.11137 of 2020, wherein the Hon’ble Supreme Court vide order dated 17.11.2020 passed the following order:

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“Delay condoned.

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We do not see any reason to interfere in the matter. The Special Leave Petition is, accordingly, dismissed.

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Pending applications, if any, also stand disposed of.”

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Learned Senior Counsel appearing for the petitioner has placed reliance on order dated 09.10.2017 passed by the learned Tribunal in Original Application No.1257 of 2015 ( Puspa Rout Vrs. State of Odisha) , wherein following was the observation:

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“ The only ground on which the Grade Pay of the promotional post has not been extended to the applicants is that the posts which the applicant is holding is an isolated post and there is no promotional hierarchy. It is, however, not disputed that the posts which the applicant is holding, is feeder cadre posts for promotion to the post of Sub Divisional Information and Public Relation Officers and other posts as shown in Rule-3. Learned Government Advocate submitted that all those promotional posts borne in a separate cadre and therefore, the applicant is not entitled to the benefits

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of the Grade Pay of the promotional post borne in a different cadre.

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Rule-11 of the Odisha Service Code defines the meaning of cadre “which means strength of a service or part of a service sanctioned as a separate unit.” The clarification issued by the Government in Finance Department in Para-12 dtd.20.01.2014 is not in accordance with the definition provided in the statutory rule. It may be noted that the issue regarding sanction of grade pay of the promotional post born in a different cadre, and the employees in the feeder cadre who will not get the Grade Pay of the promotional post, have already been settled in the decision of the Tribunal in O.A. No.520/2014 and batch, which has been confirmed by the Hon’ble High Court in W.P.(C) No.2831/2016. Admittedly the posts, which the applicant is now holding, is the feeder cadre posts for promotion to the post mentioned in Rule-3 of the Odisha Information Service (Jr. Branch) (Method of Recruitment and Conditions of Service) Rules, 2009 and thus, there is promotional hierarchy of the posts, which the applicant is holding.

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Thus, in view of the settled position, the applicant cannot be denied benefit of the Grade Pay in the promotional post and the Grade Pay of Rs.2200/-, which has been given to the applicant treating the post as isolated post is illegal and consequently the applicant is

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entitled to the benefit of Grade Pay of the promotional post i.e. Rs.4,200/-, Rs.4,600/- and Rs.4,800/- on completion of 10, 20 and 30 years of service. Accordingly, the impugned order vide Annexure-8 is quashed and the respondent authorities are directed to extend the benefit of Grade Pay as indicated above and such benefit be extended to the applicants within a period of three months from the date of receipt of a copy of this order.

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With these orders, the O.As. are disposed of.”

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4.1. He also referred to another order in Original Application No.1313 of 2015 ( Ashok Baliarsingh Vs. State of Odisha , disposed of on 01.09.2017). He submitted that the Odisha Information and Public Relation Officer, Kendrapara issued Office order dated 13.05.2021, wherein it has been directed that the Competent Authority was required to sanction the financial benefits to the petitioner in O.A. No.1258 of 2015 ( Sri Gobardhan Biswal Vrs. State of Odisha and others ).

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4.2. He submitted that though out of eleven Original Applications, in respect of four cases the order(s) has been implemented by the Odisha Information and Public Relation Officer leaving seven other employees without implementation of the said order of the Tribunal. Therefore, the petitioner filed representation before the authority concerned for release of financial benefits under the RACP Scheme. As no fruit yielded, the petitioner preferred to move this Court by way of filing W.P.(C) No.22976 of 2019, which came to be disposed of on 02.12.2019 with a direction

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to consider the representation for grant of RACPS. As there was non-compliance of such direction, in contempt petition, being CONTC No.1871 of 2020, the following observation was made vide order dated 16.07.2021:

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“Having heard learned counsel for the parties and after going through the records, this Court find that the claim of the petitioner has already been adjudicated and decided by the tribunal in O.A. No.1128 of 2015, which was disposed of on 05.05.2018 directing the authority to extend the benefit of grade pay admissible to the petitioner, as has been stated above. It has been brought to the notice of the Court that against the order dated 05.05.2018 passed by the tribunal, State has preferred writ petition, which was dismissed, and, therefore, the order so passed by the tribunal has reached its finality. But in an another connected matter, State-opposite party preferred W.P.(C) No.2783 of 2018, which was dismissed vide order dated 07.11.2019 and thereafter the State-opposite party went to the apex Court by filing SLP (C) No.11137 of 2020, which was also dismissed vide order dated 17.11.2020. Thereby, the order passed by the tribunal has been made confirmed and consequentially the benefit of grade pay was also extended to the petitioners in the said original application. Similarly, though the State-authorities have extended the benefits to 11 similarly situated persons, because of the petitioner chosen wrong forum, the

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benefit has not been extended to him till date and, as such, while considering his case, the authority has not taken into consideration the above fact in proper perspective and without any application of mind, rejected the claim of the petitioner. In any case, this Court is of the considered opinion that it cannot be said that there is violation of the order passed by the tribunal, rather the present application has been filed for compliance of the order dated 02.12.2019 passed by this Court on in W.P.(C) No.22976 of 2019. Therefore, while rejecting the claim of the petitioner on consideration of the representation, whether the authority has applied its mind or not, the same cannot be adjudicated in this present contempt application. Therefore, the petitioner has to pursue his remedy, with regard to implementation of the order passed by the tribunal, by filing properly constituted application instead pursuing the present contempt application.

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In the above view of the matter, this Court does not find any violation of the order dated 02.12.2019 passed in W.P.(C) No.22976 of 2019. Accordingly, the contempt proceeding is hereby dropped. However, liberty is granted to the petitioner to pursue his remedy in accordance with law for implementation of the order dated 05.05.2018 passed by the tribunal in O.A. No.1128 of 2015, if he is so advised”

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4.3. Learned Senior Counsel appearing for the petitioner submitted that the Department is bound by the order passed by the learned Tribunal granting the relief prayed for in terms of RACP Scheme which was never challenged before any of the higher fora. He also asserted that the order passed by the learned Tribunal in a batch of matters, which was carried before this Court in respect of the present petitioner got confirmed with reasoned order and the Hon’ble Supreme Court of India also did decline to interfere. Therefore, he urged that the order dated 22.01.2020 passed by the Commissioner- cum -Secretary to Government in Information and Public Relations Department is not tenable and non est in the eye of law. The petitioner is entitled to the benefit of RACPS as per order dated 05.05.2018 of the Odisha Administrative Tribunal (Annexure1) as the same has never been challenged qua the petitioner and for further reasoning that the orders of the said Tribunal passed in respect of similarly circumstanced employees having attained finality in view of dismissal of SLP before the Hon’ble Supreme Court of India.

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Ms. Saswata Pattnaik, learned Additional Government Advocate appearing for the State-opposite parties submitted that order dated 22.01.2020 passed by the authority concerned in pursuance of order dated 02.12.2019 passed in W.P.(C) No.22976 of 2019, wherein this Court merely directed for consideration of representation but there was no reference to extending the benefit of the order dated 05.05.2018 passed by the learned Odisha Administrative Tribunal, the order dated 22.01.2020 (Annexure-5)

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rejecting the claim of the petitioner is, thus, cannot be held to be infirm.

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Heard Mr. Kali Prasanna Mishra, learned Senior Counsel appearing along with Mr. Adyasidhi Mishra, learned counsel and Mr. A. Mohapatra, learned counsel for the petitioner and Ms. Saswata Pattnaik, learned Additional Government Advocate appearing for the State-opposite parties.

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Considering the submissions made by learned counsel for the parties and on perusal of order dated 05.05.2018 passed by the learned Odisha Administrative Tribunal, it transpires that the present petitioner is entitled to Grade Pay of the promotional post, i.e., Rs.4,200/-, Rs.4,600/- and Rs.4,800/- on completion of 10, 20 and 30 years of service. In the circumstances narrated above which could not be disputed by the learned Additional Government Advocate, the said order of learned Tribunal having reached finality, the authority concerned is obligated to comply with the terms of the order dated 05.05.2018 passed by the learned Odisha Administrative Tribunal.

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This Court appreciates the facts pleaded in the writ petition and argued by the learned Senior Counsel for the petitioner that since the Administrative Tribunal has been abolished by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015AT [G.S.R.552(E)], dated 2^nd August, 2019), the petitioner and others in whose favour granting benefit of RACPS the aforesaid order dated 05.05.2018 was made could not pursue for implementation of the same.

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Nevertheless, it is appreciated that in respect of certain employees who are similarly situated with that of the petitioner and others as the State Government have granted the benefit of RACPS as directed in the order of the Odisha Administrative Tribunal, identical relief is required to be extended to the petitioner herein as challenge to the order dated 05.05.2018 has never been made to the higher fora and cognizance of similar order of the Tribunal has not only been affirmed by this Court but the same was not interfered with by the Hon’ble Supreme Court of India. Under the aforesaid premise, the State Government is bound to extend the similar benefit as has already been extended to the similarly situated persons inasmuch as the State Government cannot discriminate by adopting pick and choose method in granting benefits of RACPS.

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Learned Senior Counsel for the petitioner has filed a memo in Court today stating that due to inadvertence, the prayer portion could not contain prayer to set aside order dated 22.01.2020 passed by the Commissioner- cum -Secretary to Government in Information and Public Relations Department. However, he submitted that the averments and contentions are taken in the writ petition which would show unambiguously that the petitioner seeks relief under RACP Scheme and to direct the opposite parties to give effect to the order dated 05.05.2018 passed in O.A. Nos. 1128, 1189, 1190, 2698 and 2699 of 2015 by the learned Odisha Administrative Tribunal. This Court has taken such memo on record and accordingly considers the present case sustaining the relief as granted by the learned Tribunal as mentioned above.

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In the result, in the wake of the above discussions and in view of the fact that order passed in respect of the petitioner by the learned Odisha Administrative Tribunal, the order dated 22.01.2020 of the Commissioner- cum -Secretary to Government Information and Public Relations Department (Annexure-5), being contrary to record, is hereby set aside and, consequently, this Court directs the opposite party No.1 to extend all benefits as claimed under the RACP Scheme, 2013 in connection with the Odisha Revised Scale of Pay Rules, 2008 and in consonance with the observations and directions contained in order dated 05.05.2018 passed by the learned Tribunal within a period of three months from today.

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With the aforesaid observation and directions, the writ petition stands disposed of.

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(M.S. Raman) Judge

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Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Sep-2024 11:08:34

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Bikash Ranjan Mohanty v. the Commnr. Cum Secry., Information and Pr Dept.

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Bikash Ranjan Mohanty v. the Commnr. Cum Secry., Information and Pr Dept.

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