Saumendra Kumar Mishra Vs State of Odisha

----------------------------------------- For Petitioner	---------- …	------------------------------------ M/s. Saswati Mohapatra, N.R. Samal.
For Opposite Parties -----------------------------------------	… ----------	Mr. Samresh Jena, Additional Standing Counsel. ------------------------------------

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PRESENT:

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THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA

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Date of hearing - 13.03.2025 :: Date of judgment - 02.04.2025

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Aditya Kumar Mohapatra, J. By filing the preset writ petition, the

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Petitioner has prayed for a direction to the State-Opposite Parties to release the pension and pensionary benefits as is due and admissible to him within the stipulated period of time.

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Page 1 of 21.

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In the present writ petition, while the matter was being heard finally after completion of the pleadings from both sides, learned counsel for the Petitioner produced a copy of letter No.549 dated 11.03.2025 issued under the signature of the Pension Sanctioning Authority, i.e. D.G.P.-cum-Director Intelligence, Odisha, Bhubaneswar. On perusal of the said letter, it appears that instruction has been given to the Sr. Accountants Officer of the office of the Accountant General (A&E), Odisha, Bhubaneswar with regard to the pensionary benefits of the present Petitioner. Further, along with the said letter, the revised pension papers of the present Petitioner along with original Service Book were re-submitted for drawal of Pension/CVP and Gratuity except Government dues to the tune of Rs.4,66,704/(towards over payment of excess pay and allowance including leave salary). Further request has been made to the office of the Accountant General (A&E), Odisha, Bhubaneswar, to release the pensionary benefits at the earliest after deducting the dues mentioned hereinabove.

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The factual background of the case leading to filing the present writ petition lie in a narrow compass. The present Page 2 of 21.

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Petitioner was appointed as Senior Clerk in the office of the Special Branch, Odisha Police, on 25.11.1987. While working as such, the Petitioner was promoted to the post of Senior Assistant

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from the post of Senior Clerk. The promotion order under Annexure-1 to the writ petition reveals that the Petitioner was given promotion to the rank of Senior Assistant vide Office Order No.189 dated 15.11.2000 by the Director-cum-Addl. D.G. of Police, Intelligence, Orissa, Cuttack, in the scale of pay of Rs.4750-125-7500/- with Special Pay/D.A. and other allowances as is admissible to the said post from time to time and the Petitioner was posted against the existing vacancy in the sanctioned post of Senior Assistant. The said promotion order further reveals that the promotion of the Petitioner was subject to the final result of O.A. Case No.2297/1996 ( Ghanashyam Nayak

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-Vrs.- State of Orissa and others ).

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While the Petitioner was working as a Senior Assistant on being promoted vide order under Annexure-1, he was extended with 2^nd RACP benefit vide order dated 12.08.2014 passed by the Director-cum-Addl. D.G. of Police, Intelligence, Odisha, Bhubaneswar under Annexure-2, with effect from 01.01.2013.

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Page 3 of 21.

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However, such 2^nd RACP benefit was cancelled vide order dated 19.08.2021 passed by the Director, Intelligence, Odisha, Bhubaneswar, under Annexure-6, on the ground that the same was erroneously extended to the Petitioner as the Petitioner appointed against/holding ex-cadre post and, as such, he is not entitled to the RACP benefits in terms of the Notification dated 06.02.2013 of the Finance Department of the Government of Odisha.

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While this was the position, the Petitioner approached the Odisha Administrative Tribunal by filing O.A. No.4217 of 2015 along with similarly situated other persons thereby challenging the order dated 05.11.2015 passed by the Opposite Party No.1. It is apt to mention here that the order dated 05.11.2015 was passed by the Home Department, Government of Odisha, laying down the principle that it is only the direct recruit staffs/officers, who are eligible to get the financial benefits under the RACP Scheme. It further reveals that the Special Branch under Police Organization enjoys the status of HOD and the Ministerial posts which have been sanctioned by the Home Department vide their

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Page 4 of 21.

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letter dated 28.08.1964, followed by letters dated 22.01.1986 and 18.07.1987.

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The above said letter further reveals that since the

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promotion of such ministerial staff in the Special Branch has been done in complete disregard to the sanctioned posts in the establishment and without the prior approval of the Department, such promotion is legally unsustainable and that it is a part of an erroneous practice followed by the Special Branch. Accordingly, certain clarifications were issued by virtue of the aforesaid orders by the Home Department. The aforesaid letter in paragraph-2 categorically provides that the Senior Clerks recruited directly in the Special Branch shall be treated as ex-cadre employee. Therefore, their services shall be governed by the instruction dated 01.12.2011 and that such persons shall be allowed the RACP benefit as per Para-10 of the Resolution dated 06.02.2013.

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After abolition of the Odisha Administrative Tribunal, the above noted O.A. was transferred to this Court and was renumbered as WPC(OAC) No.4217 of 2015. The writ petition filed by the Petitioner was taken up by a coordinate Bench of this

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Page 5 of 21.

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Court along with the writ petitions of other similarly situated persons. Finally, the learned coordinate Bench vide order dated 03.11.2022 disposed of the writ petitions by virtue of a common order passed in WPC(OAC) No.1554 of 2016 ( Jagannath Sethi & Others v. State of Odisha& Others ). While allowing the said writ petitions, learned coordinate Bench has observed that after receiving order dated 05.11.2015 from the Government, the Director-cum-Additional D.G. of Police, Intelligence sought for instruction/clarification from the Government in the context of whether ministerial staff working in the Special Branch are entitled to get benefit of RACP under the Resolution dated 06.02.2013.

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It has already been observed that no cadre rule was framed in respect of the ministerial staff working in the Special Brach. Thus, in the absence of such cadre rule, learned coordinate Bench has held that the action of Opposite Party No.1 in holding that the post of Senior Clerk as an ex-cadre post was not just and proper. However, while disposing of the writ petitions, the Opposite Party No.1 was directed to take a decision within a period of one

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month keeping in view the admitted position regarding non-

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Page 6 of 21.

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framing of any cadre rule for ministerial staff working in the Special Branch and further keeping in view the fact that no cadre rule exists for such employees. Finally, it was observed that on such consideration the benefit of MACP/RACP be extended in favour of the Petitioners.

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Ms. Saswati Mohapatra, learned counsel for the Petitioner, at this juncture, contended that by virtue of the Office Order No.231 dated 29.12.2020 under Annexure-5 to the writ petition, the Opposite Parties have considered the case of the Petitioner by treating him as a Senior Assistant (directly recruited as a Senior Clerk) and he has been extended with the RACP/MACP benefits as per Clause-10 of the Finance Department Resolution dated 06.02.2013. Further, such decision taken by the Opposite Parties was made subject to the final outcome of the decision in O.A. No.4217 of 2015. Accordingly, an order was passed by extending the 1^st RACP benefit w.e.f. 01.01.2013 on completion of 10 years of service on 25.11.1997, 2^nd RACP benefit w.e.f. 01.01.2013 on completion of 20 years of service on 25.11.2007 and finally, 3^rd MACP benefit was allowed w.e.f. 25.11.2017 i.e. on completion of 30 years of service.

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Page 7 of 21.

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Learned counsel for the Petitioner further contended that pursuant to order dated 29.12.2020 under Annexure-5 to the writ petition, the Petitioner was extended with the benefits pursuant to the Finance Department Resolution dated 06.02.2013, though the same was subject to the final outcome of O.A. No.4217 of 2015. In so far as O.A. No.4217 of 2015 is concerned, the same has been discussed in the preceding paragraph and by virtue of order passed by the learned coordinate Bench, the writ petition preferred by the Petitioner was allowed subject to certain observations. In such view of the matter, learned counsel for the Petitioner submitted that the order dated 29.12.2020, extending the benefits of RACP/MACP in favour of the Petitioner, had attained finality and such decision of the Government under Annexure-5 has not been discussed by the coordinate Bench of this Court while passing orders in WPC(OAC) No.4217 of 2015, which was disposed of vide a common order dated 03.11.2022.

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Further, referring to the order dated 12.08.2014 under Annexure-2 to the writ petition, learned counsel for the Petitioner contended that the screening committee which was constituted to consider the case of the ministerial staff for grant of RACP

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Page 8 of 21.

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benefits had recommended the case of the Petitioner for grant of 2^nd RACP benefits w.e.f. 01.01.2013 on completion of 20 years of service. Thus, the decision of the Opposite Parties in extending the RACP benefits in terms of the Finance Department Resolution dated 06.02.2013 has eventually been upheld by the coordinate Bench of this Court in its order dated 03.11.2022.

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While this was the position, on 19.08.2021, an order was passed by the Director, Intelligence, Odisha, Bhubaneswar, under Annexure-6 to the writ petition thereby cancelling the 2^nd RACP benefits extended in favour of the present Petitioner. Being aggrieved by such order, the Petitioner approached this Court by filing W.P.(C) No.26170 of 2021. This Court disposed of the above noted writ petition vide order dated 17.04.2023 by taking note of the order passed by the coordinate Bench of this Court on 03.11.2022 in Jagannath Sethi’s case (supra) and the batch of other similar matters and while disposing of the writ application, this Court had categorically directed the Opposite Party No.1 to carry out the order passed by the coordinate Bench of this Court in Jagannath Sethi’s case (supra) and batch of other similar

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matters, which were disposed of vide a common order dated

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Page 9 of 21.

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03.11.2022, including the writ petition of the present Petitioner, within a period of eight weeks and it was further directed that the Opposite Party No.1 shall also consider the grant of RACP/MACP in favour of the Petitioner as has been directed by the coordinate Bench of this Court vide order dated 03.11.2022.

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Since the order dated 17.04.2023 passed in W.P.(C) No.26170 of 2021 was not implemented by the Opposite Parties, the Petitioner was compelled to approach this Court by filing CONTC No.10162 of 2023. This Court disposed of the said contempt application vide order dated 12.01.2024 by granting further eight weeks’ time to the Opposite Parties to implement the order dated 17.04.2023.

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While the matter stood thus, the Petitioner has retired from service on attaining the age of superannuation w.e.f. 31.10.2023 while he was working as a Senior Assistant in the office of Superintendent of Police, Security Wing, Bhubaneswar. Learned counsel for the Petitioner, at this juncture, contended that after his retirement from service, the Petitioner was getting provisional pension by taking into consideration the scale of pay of the

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Page 10 of 21.

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Petitioner attached to the post of Senior Assistant. In the aforesaid context, learned counsel for the Petitioner referred to the order under Annexure-10 to the writ petition.

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Mr. Samresh Jena, learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, referred to the counter affidavit filed by the Opposite Party No.3 to the writ petition. Further, referring to the counter affidavit, learned Additional Standing Counsel appearing for the StateOpposite Parties contended that there are no approved cadre rules to regulate the service condition of ministerial staff of the Special Branch. As per existing practice, the Petitioner and similarly situated other persons have been appointed directly as Senior Clerk and, accordingly, the Petitioner was appointed as Senior Clerk in the year 1987. Further, in counter affidavit, the Opposite Parties have specifically admitted the fact with regard to the promotion given to the Petitioner to the rank of Senior Assistant, although they have stated that the Petitioner should not have been given promotion as the post of Senior Clerk is a District Cadre post. However, they have not disputed the fact

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Page 11 of 21.

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that the Petitioner was given promotion to the rank of Senior Assistant vide Office Order dated 15.11.2000 under Anexure-1.

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Learned Additional Standing Counsel appearing for the State-Opposite Parties further contended that the recommendation for grant of RACP benefits pursuant to the Finance Department Resolution dated 06.02.2013 is an erroneous one. The Screening Committee under the Chairmanship of S.P. Security Wing had erroneously recommended for 2^nd RACP benefits in favour of the Petitioner w.e.f. 01.01.2013 vide their office order dated 12.08.2014. Moreover, to overcome the aforesaid problem, although the Government was moved seeking clarification in the matter, however, no such clarification was given to the Opposite Parties by the Government. Referring to the Home Department, Government of Odisha letter dated 05.11.2015, learned Additional Standing Counsel submitted before this Court that the Senior Clerks so recruited directly in the Special Branch shall be treated as ex-cadre employees and their services shall be governed by Home Department communication dated 01.12.2011.

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Further, letter dated 01.12.2011 stipulates that such statutory cadre rule shall not be applicable to such employees and that they will continue against the ex-cadre posts enjoying the status of Government servant. He further contended that such employees who are continuing in ex-cadre posts have been extended with the benefit of RACP under Clause-10 of Finance Department Resolution dated 06.02.2013. Moreover, the learned Additional Standing Counsel also contended that in terms of the letter dated 05.11.2015, the Screening Committee verified the cases of the Petitioner in its meeting held on 17.12.2020.

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Accordingly, the Petitioner was extended with the financial benefits under the Finance Department Resolution dated 06.02.2013 by allowing the Petitioner to get the benefits of 1^st , 2^nd RACP and 3^rd MACP on completion of 10, 20 and 30 years of service in one rank under Para-10 of the Finance Department Resolution dated 06.02.2013. Learned Additional Standing Counsel appearing for the State-Opposite Parties further contended that while reviewing the decision taken by the Screening Committee on 17.12.2020, which was communicated

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to the Petitioner on 29.12.2020 under Annexure-5 to the writ

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Page 13 of 21.

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petition, the decision of the Screening Committee dated 17.02.2020 was recalled vide order dated 19.08.2021 under Annexure-6 to the writ petition. However, no specific ground for recall has been mentioned in the order dated 19.08.2021 under Annexure-6 to the writ petition.

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Additionally, with regard to framing of cadre rule, learned Additional Standing Counsel referring to the counter affidavit, submitted that the separate draft Cadre Rule for “The Intelligence Directorate of Odisha Police Ministerial Service (Method of Recruitment and Conditions of Service)” has been sent to the Police Headquarters vide letter dated 08.12.2023 for approval by the Government. In paragraph-12 of the counter affidavit, the date of retirement of the Petitioner has also been referred to and it has been stated that although his pension papers were forwarded to the competent authority, however, it was detected that the same is not in consonance with the order dated 29.12.2020. Such fact has also been reiterated in paragraph-13 of the counter affidavit. In view of the aforesaid submission, learned Additional Standing Counsel submitted that the Opposite Parties

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have not committed any illegality in withholding his financial

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Page 14 of 21.

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benefits, which had been erroneously released in favour of the Petitioner. Accordingly, it was contended that the writ petition is devoid of merit and, as such, the same should be dismissed.

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Heard Ms. Saswati Mohapatra, learned counsel appearing for the Petitioner as well as Mr. Samresh Jena, learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the pleadings of the respective parties as well as examined the documents annexed to the respective pleadings.

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On a careful analysis of the submissions made by the learned counsels appearing for both the sides, further on a careful scrutiny of the factual background of the present case along with the documents placed before this Court for consideration by both the sides, this Court observes that the only issue that is required to be considered in the present case is with regard to the grant of benefits to the Petitioner under the Finance Department Resolution dated 06.02.2013 by taking into consideration the pay scale of the Petitioner as a Senior Assistant. On a careful analysis of the materials on record, it appears that although a decision was taken by the Opposite Parties to extend the financial benefits

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Page 15 of 21.

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under the Finance Department Resolution dated 06.02.2013, however, the same has been subsequently withdrawn vide order dated 19.08.2021 under Annexure-6 to the writ petition.

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It is not disputed by the parties that the Petitioner had initially joined as a Senior Clerk. Thereafter he was promoted to the post of Senior Assistant by virtue of order dated 15.11.2000 passed by the Director-cum-Addl. D.G. of Police, Intelligence, Orissa, Cuttack in the scale of pay of Rs.4750-125-7500/- along with Special Pay/D.A. and other allowances attached to the said post. It is also not disputed by the parties that there was a vacancy in the post of the Senior Assistant. Parties to the present writ application also do not dispute the fact that there is no cadre rule framed to govern the service conditions of the officers/staffs engaged in Odisha Special Branch. Keeping in view the aforesaid admitted factual position, this Court is required to adjudicate the conduct of the Opposite Parties in withdrawing the financial benefits which was extended in favour of the Petitioner on being recommended by the Screening Committee vide its minutes dated 17.12.2020 which was subsequently

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Page 16 of 21.

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communicated vide Office Order dated 29.12.2020 under

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Annexure-5.

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On a careful scrutiny of order dated 29.12.2020 under Annexure-5, it is observed that the Petitioner has been extended with the 1^st , 2^nd RACP and 3^rd MACP benefits by considering the Petitioner as a Senior Assistant (Directly Recruited as Senior Clerk). While the Petitioner was drawing such benefits, the impugned order under Annexure-6 was passed by abruptly withdrawing the order dated 12.08.2014, under which, the Petitioner was extended with the benefit of the 2^nd RACP on completion of 20 years of qualifying service. It has been further specifically mentioned that the Petitioner has been allowed the financial upgradation pursuant to Office Order No.231 dated 29.12.2020. On a close scrutiny of order dated 19.08.2021 under Annexure-6 to the writ petition, this Court found that the order dated 12.08.2014 under Annexure-2 extending 2^nd RACP benefits has only been cancelled while granting the benefits vide order dated 29.12.2020 under Annexure-5 to the writ petition.

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Page 17 of 21.

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As has been discussed hereinabove, by virtue of the order dated 29.12.2020 under Annexure-5 to the writ petition, the Petitioner has been extended with the benefits as per the pay scale attached to the post of Senior Assistant and the date of such benefits has already been mentioned in the Office Order dated 29.12.2020 at Serial No.13. Moreover, none of the parties to the writ petition have disputed the order dated 29.12.2020. Further, this Court observes that the Petitioner has already retired from service in the meantime. Therefore, the question with regard to the framing of cadre rule is merely academic in nature. It is also not disputed by the Opposite Parties that the Petitioner was holding the post of Senior Assistant from 15.11.2000 ( as per the document under Annexure-1 to the writ petition) till his retirement. Therefore, this Court finds no infirmity in the order dated 29.12.2020 under Annexure-5 to the writ petition.

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It is also observed by this Court that in the previous writ petition, a coordinate Bench of this Court as well as this Bench has categorically held that the Petitioner was holding the post of Senior Assistant and necessary directions were issued to the Opposite Parties to redress the grievance of the Petitioner.

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Page 18 of 21.

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The letter dated 11.03.2025, which was produced before this Court today, in course of hearing, by the learned Additional

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Standing Counsel, reveals that the Pension Sanctioning Authority has already recommended the case of the Petitioner for grant of pensionary benefits taking into consideration the fact that the Petitioner was working as Ex-Senior Assistant. Therefore, there exists no doubt with regard to the Petitioner holding the post of Senior Assistant. Accordingly, this Court has no hesitation in coming to a conclusion that the Petitioner was, in fact, promoted and was holding the post of Senior Assistant and, as such, he is entitled to the pay scale and other allowances attached to the said post. Moreover, the order dated 29.12.2020 under Annexure-5 to the writ petition is very clear with regard to payment of benefits under the financial upgradation scheme pursuant to the Finance Department Resolution dated 06.02.2013 and the same is not disputed by either side.

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In such view of the matter, the present writ petition stands allowed with a direction to the Opposite Parties to grant the pensionary as well as other financial benefits including CVP/Gratuity by taking into consideration the fact that the

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Page 19 of 21.

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Petitioner was working as a Senior Assistant and was getting the scale of pay attached to the said post. Accordingly, the pay scale of the Petitioner shall be re-fixed by taking into consideration the benefits as has been allowed in his favour vide Office Order dated 29.12.2020 under Annexure-5 to the writ petition.

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While disposing of the writ petition with the aforesaid direction, this Court further directs that the Pension Sanctioning Authority shall recalculate the dues of the Petitioner in terms of the observations made hereinabove. Accordingly, the recommendation sent to the office of the Accountant General (A&E), Odisha, Bhubaneswar, for recovery of a sum of Rs.4,66,704/- vide letter dated 11.03.2025 is hereby quashed. The Petitioner is directed to approach the Opposite Parties along with a copy of this judgment. In such eventuality, the opposite Parties shall recalculate the benefits as has been directed hereinabove and shall make every endeavour to extend the service as well as all financial benefits as is due and admissible to the Petitioner within a period of three months.

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