Tribhuban Behera Vs State of Odisha

Challenging the Order No.566 dated 10.01.2022 passed by the Chief District Medical & Public Health Officer, Cuttackopposite party no.3, wherein and whereby the grievance of the petitioner for grant of RACP with effect from 31.01.2014 was rejected, the petitioner has approached this Court by way of filing this writ petition invoking extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India with the following prayer(s):

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“The Petitioner most respectfully prays that the Hon‟ble Court may be graciously pleased to allow the writ petition, issue a writ or direction in the nature of certiorari or any other appropriate writ or direction quashing the order No.566 dtd.10.01.2022 passed by the CDM & PHO, Cuttack under Annexure-3 and further issue a direction in the nature of mandamus or any other appropriate writ or direction to the opposite parties to grant RACP to the petitioner w.e.f. 31.01.2014 with all consequential financial and service

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benefits and pass such other or further order or orders as are deemed just and proper. ”

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Facts as adumbrated in the writ petition reveal that the petitioner was appointed as Dresser in Class-IV Category Post on 03.06.1978 and, subsequently, he was promoted to the post of MPHW (M) on 29.10.2003 and joined on 31.01.2004 in CHC, Kanpur in the district of Cuttack.

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3.1. The Government of Odisha in Finance Department introduced the Revised Assured Career Progression Scheme (RACP) vide Resolution No.3560 dated 06.02.2013. The aim and object of the said scheme is to give incentive to the employees whose promotion has been stagnated within certain period of service. Unless the employees are given incentives by way of financial up-gradation, the moral of the Government employees would not be upgraded and the employees would suffer frustration. Therefore, the Government of Odisha in Finance Department in substitution of earlier Time Bound Advancement, introduced the Assured Career Progression, according to which benefit is given on completion of 10, 20 and 30 years of service in the event an employee does not get promotion. The Resolution of the Government of Odisha in Finance Department dated 06.02.2013 reads as thus:-

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“ Government of Odisha Finance Department *** Resolution

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No.3560/PCC(A)-49/2012/F Date:6/2/2013 Sub:- Revised Assured Career Progression Scheme (RACPS) for the State Government Employees

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The State Government considered the recommendations of the Fitment Committee and granted Assured Career Progression (ACP) to the State Government employees on completion of 15^th , 25^th and 30^th 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. 1^st ACP on completion of 15 years of service, 2^nd ACP after 25 years of service and 3^rd 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.

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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.

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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).

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4. The RACPS is to be effective from 01.01.2013.

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5. The details of the RACP Scheme and conditions for grant of the financial upgradation under the Scheme are given in Annexure-1.

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By order of the Governor Sd/Additional Secretary to Government”

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3.2. It is alleged that since the RACP was not granted to the petitioner on completion of ten years of service on promotional post on 30.01.2014 as he is entitled to get RACP from 31.01.2014, he approached this Court by filing W.P.(C) No.1472 of 2021 and this Court while disposing of the said writ petition vide order dated 20.01.2021 directed opposite party no.1 therein to consider the request of the petitioner involved in the said writ petition by treating the same as representation at his instance and take a lawful decision in the matter on the basis of the plea raised by him in the writ petition along with the judgment annexed to the said writ petition.

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3.3. The case of the petitioner further reveals that pursuant to the aforesaid direction of this Court, opposite party no.3 disposed of the representation and communicated the decision thereof to the petitioner vide Order No.566 dated 10.01.2022 by the CDMO & PHO, Cuttack, which is under challenge in the present writ petition. The order dated 10.01.2022 passed by opposite party no.3 reads as follows:-

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“ Office of the Chief Distirct Medical and Public Health Officer, Cuttack No.566 CDM&PHO, Cuttack date 10/1/2022

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Order

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WHERE AS, Sri TribhubanBeheraMPHW(M) filed W.P.(C) No.1472 2021 before the Hon‟ble HIGH COURT for redressal of his grievance for RACP.

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AND WHERE AS Hon‟ble HIGH COURT of ORISSA directed on 20.01.2021 as thus,

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“Looking to the prayer made in this writ petition and as decision in the matter is required to be taken by the opposite party No.1, this writ petition stands disposed of with direction to OP No.1 to consider the request of the

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petitioner involved in this writ petition by treating the same as a representation at the instance of the petitioner and take a lawful decision in the matter, taking into account the plea raised in the writ petition as well as the judgment appended thereto. The entire exercise shall be completed within a period of two months from the date of communication of the order along with copy of the writ petition by the petitioner.

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AND WHERE AS Government of ODISHA HEALTH & FAMILY WELFARE Department disposes the representation of the petitioner in compliance to the Order dated 20.01.2021 passed by the Hon‟ble HIGH COURT ORISSA in W.P.(C) No.1472/2021 in Order No.9988 H & FW dated 31.03.2021 under intimation to the petitioner, Director of Health Services Odisha, the office of the undersigned and Advocate General Odisha, HIGH COURT, Cuttack in next Memo No.9989, 9990, 9991 and 9992 dated 31.03.2021 respectively.

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AND WHERE AS in pursuant of the direction of the Hon‟ble HIGH COURT ORISSA and subsequent orders of H & FW Department the case of Sri TribhubanBeheraVrsB.K. Mohapatra & Other (arising out of W.P.(C) No.1472/2021, disposed of on 20.01.2021 & CONTC No.2857/2021, disposed of on 11.06.2021) the records maintained at the level of appointing Authority were reexamined and taken into consideration for passing of instant order.

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AND WHERE AS upon scrutiny of the averments it is revealed that Sri Behera appointed as Dresser and joined on 03.06.1978 in the Scale of pay 2550 to 3200/- and continued till 30.01.2004.

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AND WHERE AS the petitioner upon posting to the post of MPHW(M) untrained and joined on 31.01.2004 in the Scale of pay 2650 to 4000/-.

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AND WHERE AS, the petitioner moved to next higher Scale of pay allowed for the post of MPHW(M) Trained on

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completion of MPHW(M) training and joined on 25.08.2011 in the Scale of pay of 5200 to 20,200/- with grade pay2000/-.

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AND WHERE AS, the petitioner retired as such from Govt. Service on Superannuation on 30.04.2019. The Scrutiny reveals that the petitioner has not properly gone through Resolution No.3560/F-PCC(A)-49/2012 dated 06.02.2013 & Memo No.1738/F-PCC(A)-37/2013 dated 20.01.2014 and made a Misrepresentation of facts.

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Now, therefore, in view of the aforesaid, facts & Rule of the subject, the claim of the Sri TribhubanBeheraMPHW(M) retired for grant of RACP bears no merit for consideration being decided by Govt. of Odisha Finance Department Resolution No.3560/FPCC(A)-49/2012 dated 06.02.2013 & Memo No.1738/FPCC(A)-37/2013 dated 20.01.2014 and hence no further benefits allowed, disposing the grievance of the applicant.

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Sd/-

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Chief District Medical & Public

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Health Officer, Cuttack”

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Counter affidavit has been filed by the opposite party no.4 denying the claim of RACP made by the petitioner. Paragraphs-8 and 9 of the counter affidavit read as follows:-

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“ 8. That, in reply to the averments made in Para-4 of the writ petition, it is humbly submitted that, the spirit of Finance department as per Annexure-2 of the petitioner is definitely towards providing financial benefits on completion of 10, 20 & 30 years of service but the petitioner had already availed higher scale of pay 5200 to 20200/- GP 2000/- w.e.f. 25.08.2011 whereas the joining of the petitioner in the scale of pay 2650/- to 4000/- was 31.01.2004 . The petitioner retired on 30.04.2019 having no scope to move to next higher scale of pay. The petitioner without going deeply through Resolution of Finance

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Department in Memo No.1738/F dated 20.01.2014 preferred to approach Hon‟ble High Court Orissa in the present writ petition. In view of this, the claim of the petitioner bears no merit, thus, the earlier prayer of the petitioner was disposed of as placed in annexure-3 of the petitioner by OP.No-04.

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1.	The petitioner joined as Class IV / Dresser	03.06.1978	In the scale of Pay Rs-2550/- to 3200/-
2.	The petitioner joined in promotional post of Untrained MPHW(M) in another cadre	31.01.2004	In the Scale of Pay Rs-2650/- to 4000/-
3.	The petitioner availed financial Up-gradation on Trained Scale of MPHW(M)	25.08.2011	In the Scale of pay 5200/- to 20200/- + GP- 2000/-
4.	The petitioner retired from Govt. Service	30.04.2019 prior to completion of 20 years	As he has availed Financial upgradation in the Cadre of MPHW(M)- 1^st:- 25.08.2011 2^nd:- Not considered as not completed 20 years of service.

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9. That, in reply to averments made in Para-5 the writ petition, it is humbly submitted that, it is the repetition of the claim of the petitioner misleading the facts that the petitioner was eligible to avail RACP w.e.f. 31.01.2014 without realising the fact that his date of availing higher

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scale of pay was 25.08.2011, but not 30.01.2014. As submitted in outgoing para-4, the petitioner retired on superannuation on 30.04.2019. Misleading of facts by a Govt. Servant or retired Govt. servant is not desirable rather, attracts disciplinary action against the petitioner. Therefore, earlier representation of the in W.P.(C) No.1472 of 2020 was disposed of as filed in annexure-3 in the present writ petitioner by the petitioner as the claim of the petitioner bears no merit in pursuant of Finance Department Resolution annexed at Annexure-2 and Annexure-4 by the petitioner in the present writ petition.”

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Sri Manoj Kumar Mohanty, learned counsel appearing for the petitioner submitted that the impugned order refusing to grant RACP to the petitioner with effect from 31.01.2014 is not only illegal, arbitrary, but also it is contrary to settled position enunciated by this Court in the case of Balabhadra Sarangi Vrs. State of Odisha, 2003 (I) OLR 24 (Division Bench); State of Odisha Vrs. Bipin Bihari Pattanayak, W.P. (C) No.9060 of 2016 disposed of vide Order dated 05.04.2017 (Division Bench); Bairagi Charan Sahoo Vrs. State of Odisha, 2021 (I) OLR 692; Anadi Charan Nayak Vrs. State of Odisha, WPC (TAC) No.84 of 2015 vide Order dated 11.01.2023 (Single Bench) . Drawing attention of this Court to the Resolution of the Government of Odisha in Finance Department dated 06.02.2013 under Annexure-2 as clarified further by the Finance Department in Letter dated 20.01.2014, submitted that the petitioner is entitled to get the benefit of RACP from 31.01.2014 and, as such, the impugned order under Annexure-3 deserves to be quashed and necessary direction is required to be issued to the opposite party no.3 to grant benefit under RACP to the petitioner

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within a stipulated period. In support of his submission, learned counsel appearing for the petitioner has relied upon the decisions/judgments of this Court in the case of Balabhadra Sarangi v. State of Orissa and others, reported in 2003 (I) OLR 24, Bairagi CharanSahoo v. State of Orissa & others , reported in 2021 (I) OLR 692 .

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5.1. In the case of Balabhadra Sarangi (supra), this Court in paragraphs-4, 5 and 6 has observed as follows:-

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“ 4. The point involved in this writ petition is no more res integra. The first decision of this Court on this point is that of Bata Krishna Sahu v. State of Orissa (OJC No. 115 of 1992 disposed of on 5.5.1994). Chief Justice Nanavati speaking for the Bench held :

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„There is nothing on record to show that as a result of the petitioner acquiring higher qualification, namely, the degree of B.A. the became entitled to a higher grade or that his post was regarded as a higher post, It is, therefore, difficult to appreciate how the period of 15 years is to be counted not from the date of appointment as a Hindi teacher but from the date he was given some benefit as a result of his passing B.A. examination. The petitioner having completed 15 years of service in the same grade or post prior to ,1.1,1985, he became entitled to the benefit of advancement pay scale.‟

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The aforesaid ratio was subsequently followed in Sanatan Barik v. State of Orissa (OJC No. 124of 1992 disposed of on 2.5.1995), Karunakar Biswal v. State of Orissa. 82 (1996) CUT 666 as well as in Jyostna Mayee Behera v. State of Orissa, 2000 (II) OLR 544. It has been consistently held in all the cases that 15 years of service has to be counted from the date of appointment for the purpose of granting advancement scale of pay because the benefit is intended to be given irrespective of other benefit that could have been granted on acquiring higher educational qualification.

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Emphasis had been laid on the words „grade or post‟ and not on scale of pay which an employee had been drawing. The scale of pay may undergo, changes during the tenure of service of an employee following revision of pay scale from time to time or on the employee‟s acquiring higher academic qualification. As per the Finance Department office memorandum, referred to above, an employee who has held the same post or grade for 15 years is to be considered for the advancement scale of pay.

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5. Since the petitioner has been holding the post of Classical Teacher with effect from 1.8.1970 and his drawal of higher scale of pay on account of acquisition of Sahityacharya qualification being immaterial, he is eligible to enjoy the benefit of time bound advancement scale of pay on completion of 15 years of service from that day in accordance with the Finance Department memoranda.

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6. In the result, the writ petition is allowed. The opposite parties are directed to pay the differential amount to the petitioner by the end of February, 2003.”

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5.2. In the case of Bairagi Charan Sahoo (supra), this Court in paragraphs-11 and 12 has held as follows:-

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“ 11. Taking into consideration the principle of law, as discussed above, and applying the same to the present context, this Court is of the considered view that though the petitioner joined as Hindi Teacher on 02.07.1982 with a qualification of Matric (Kovid) and subsequently he acquired „Ratna‟ qualification on 25.10.1996 and HTTC, Hindi Training qualification on 29.12.1999 and was allowed the Hindi trained scale of pay of Rs.4500-7000/- w.e.f. 29.12.1999, that itself cannot disentitle him to get the time bound advancement scale of pay for continuous holding the “post” or “grade” for 15 years. Thus, drawal of higher scale of pay on account of acquisition of „Ratna‟ qualification by the petitioner being immaterial, he is

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eligible to enjoy the benefit of time bound advancement scale of pay on completion of 15 years for holding of Hindi teacher “post” or “grade” w.e.f. 02.07.1982 in accordance with Finance Department Memorandum dated 29.12.1987, which fact has been clarified by the Government on 20.06.1991, as has been dealt with in the judgment passed by this Court in Balabhadra Sarangi mentioned supra. In the meantime, though the petitioner has retired from service on attaining the age of superannuation, but that ipso facto cannot disentitle him to get the benefit, as claimed in the writ petition.

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12. In view of the facts and circumstances as well as the law as discussed above, this Court is of the considered view that the petitioner is entitled to get the time bound advancement scale of pay on completion of 15 years of service from the date of his initial appointment, i.e., 02.07.1982. Therefore, this Court directs the opposite parties to calculate the differential arrear salary and pay the same to the petitioner forthwith preferable by 31^st May, 2021, failing which it will carry an interest @9% per annum.”

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Mr. Arnav Behera, learned Additional Standing Counsel appearing for the opposite parties-State submitted that the impugned order does not warrant interference of this Court as it has been clearly stated in the impugned order dated 10.01.2022 (Annexure-3) that “the petitioner moved to next higher scale of pay allowed for the post of MPHW (M) Trained on completion of MPHW (M) Training and joining on 25.08.2011 in the Scale of pay of Rs.5,200 to 20,200/- with grade pay Rs.2,000/-”.

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Considering the aforesaid facts and circumstances of the case, so also the submissions advanced by the learned counsel for

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the parties, the impugned order vide Annexure-3 is not sustainable in the eye of law as the opposite party No.3 has proceeded on the basis of scale of pay with reference to grade pay. Such a finding is apparently contrary to the ratio of the judgments in Balabhadra Sarangi (supra) and Bairagi Charan Sahoo (supra). In the said cases it has been clearly laid down that this consistently viewed that the entitlement is be counted from the date of appointment for the purpose of granting advancement of scale of pay, but not from the date of acquisition of educational qualification. This Court laid emphasis on “grade or post” and not the scale of pay which the employee had been drawing.

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Therefore, the impugned order dated 10.01.2022 under Annexure-3 passed by the opposite party No.3 deserves interference. In the result, the writ petition is bound to succeed. As a sequel to the aforesaid discussions, the impugned order under Annexure-3 is set aside and the Chief District Medical and Public Health Officer, Cuttack, opposite party no.3 is directed to reconsider the claim of RACP made by the petitioner within a period of three months from the date of receipt of copy of this order.

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

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(M.S. Raman) Judge

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Laxmikant/MRS Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Oct-2024 16:56:37

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Tribhuban Behera v. State of Odisha

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Tribhuban Behera v. State of Odisha

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