Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.7447 of 2021 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Smt. Renuka Dei Aged about 61 Years Wife of Patitapaban Ojha At: Plot No.48/136 Ananta Vihar (Near Panitanki) P.O.: Nayabazar, P.S.: Chauliaganj … District: Cuttack -VERSUS- Petitioner 1. State of Odisha Represented through Commissioner-cum-Secretary Water Resources Department, Odisha Bhubaneswar, District: Khordha. 2. Principal Secretary to Government of Odisha Finance Department Bhubaneswar, District: Khordha. 3. Engineer-in-Chief Water Resources Department, Odisha Bhubaneswar, District: Khordha. 4. Superintending Engineer, Eastern Circle Cuttack. 5. Executive Engineer Mahanadi North Division, Jagatpur District: Cuttack. … W.P. (C) No.7447 of 2021 Opposite parties Page 1 of 63 Counsel appeared for the parties: For the Petitioner : Mr. Gyana Ranjan Sethi, Ms. Babita Kumari Pattanaik with Mr. Manoja Kumar Khuntia, Advocates For the Opposite parties : Mr. Shantanu Das, Additional Standing Counsel P R E S E N T: THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 23.07.2025 :: Date of Judgment : 01.08.2025 J UDGMENT MURAHARI SRI RAMAN, J.— Non-grant of financial upgradation under the Revised Assured Career Progression Scheme (for brevity referred to as “RACPS”) in the Grade Pay of Rs.4,600/- brought the petitioner before this Court beseeching exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following pray(s): ―It is therefore humbly prayed that this Hon‘ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs; i) To direct the opposite parties to refix the pension of petitioner after granting 3rd financial upgradation in W.P. (C) No.7447 of 2021 Page 2 of 63 pay band-2, scale of pay of Rs.9300/- to 34800/- with grade pay of Rs.4600/- under RACP w.e.f. 01.01.2013 as per Notification 19.09.2015 and ratio decided in O.A.No.2328(C) of 2017 confirmed by this Hon‘ble Court in W.P.(C) No28074 of 2019; ii) To direct the opposite parties to release the arrear salary consequent upon granting 3rd financial in pay band-2, scale of pay of upgradation Rs.9300/- to 34800/- with grade pay of Rs 4600/- under RACP w.e.f. 01.01.2013. iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice. And for this act of kindness, the petitioner as in duty bound shall ever pray.‖ PLEADINGS: 2. Having entered into Government service on 14.06.1978 (vide Service Book copy of which is at Annexure-1), as Lower Division Clerk, the petitioner posted in the Office of Superintending Engineer, Upper Kolab Dam Circle, Koraput got transferred to function as such at the Eastern Circle, Cuttack and was granted Time-Bound Advancement taking entry grade from his initial date of joining on 14.06.1978. 2.1. The petitioner on completion of 30 years of Government service as on 13-14.06.2008, she is entitled for the benefit of 3rd RACPS attune with the Finance W.P. (C) No.7447 of 2021 Page 3 of 63 Department Resolution dated 06.02.2013 with effect from 01.01.2013 with grade pay at Rs.4,600/-. 2.2. As the pay has not been fixed appropriately, so also pensionary benefits, this writ petition has been filed. Hearing: 3. The instant writ petition got disposed of on 04.03.2021 at the stage of admission with the direction to the opposite parties to “look into the grievance of the petitioner vide Annexure-6 and take decision, as appropriate, taking into consideration the development through Annexure-5 and also the plea taken in the writ petition”. Aggrieved thereby, the opposite parties proceeded in intra-Court appeal (W.A. No.1026 of 2022) with the complaint that without affording opportunity of placing para-wise reply to the writ petition, prejudice did ensue. This Court in Division Bench vide Order dated 20.03.2023 disposed of said writ appeal remitting the matter with the following observation and direction: ―1. On the short ground that the impugned order was passed on the very first date without affording an opportunity to the Appellants-State to file a para- wise reply to the writ petition, the impugned order dated 4th March, 2021 passed in W.P.(C) No.7447 of 2021 is hereby set aside and the said writ petition is remitted to the Roster Bench of the learned Single Judge, where it will be listed for directions on 10th May, 2023. W.P. (C) No.7447 of 2021 Page 4 of 63 2. Replies will be filed by the State to the writ petition positively on or before 1st May, 2023 and rejoinder thereto, if any, be filed by the writ petitioner before 10th May, 2023. It is made clear that no further time will be granted to either party for that purpose. The learned Single Judge is requested to proceed with the matter on merits and endeavour to dispose it of as expeditiously as possible.
Decision
3. Accordingly, the writ appeal is disposed of.‖ 3.1. Accordingly, being restored to file, this matter was listed on 22.07.2025. 3.2. Sri Shantanu Das, learned Additional Standing Counsel would submit that the opposite parties have not taken any step to file counter affidavit notwithstanding specific direction of the Division Bench. Since the dateline as specified in the order passed in writ appeal has already been elapsed, he would prefer to advance arguments on the basis of material available on record. 3.3. Ms. Babita Kumari Pattanaik, learned Advocate appearing for the petitioner assisting Sri Manoja Kumar Khuntia, learned Advocate conceded to such request of Sri Shantanu Das, learned Additional Standing Counsel appearing for the opposite parties. She submitted that as the petitioner, retired Government employee, is seeking fixation of pay for pension as also arrears, the matter can be disposed of by taking into consideration case of W.P. (C) No.7447 of 2021 Page 5 of 63 similarly situated employee who has already been granted identical benefit as prayed for in the instant writ petition. 4. Heard Sri Manoja Kumar Khuntia, learned Advocate along with Ms. Babita Kumari Pattanaik, learned Advocate for the petitioner on 22.07.2025 and the following order was passed: 2. ―This matter is taken up through Hybrid Mode. Sri Manoj Kumar Khuntia, learned counsel on behalf learned counsel of Sri Gyana Ranjan Sethi, appearing for the petitioner advanced arguments by submitting that the petitioner being transferred from Upper Kolab Dam Circle to Eastern Circle, Cuttack on 29.09.1986, her past services were not taken into consideration for the purpose of computation of thirty years in order to extend the benefit of 3rd Financial Upgradation of the Revised Assured Career Progression Scheme (RACPS) under the Odisha Revised Scales of Pay Rules, 2008 read with Finance Department Resolution dated 06.02.2013. He further submitted that the Finance Department Resolution dated 13.02.2025 has clarified the position by deleting the words ―in a single cadre‖ as mentioned in Finance Department Resolution dated 06.02.2013. He submitted that similar issue has already been decided by a Division Bench of this Court in W.P.(C) No.28074 of 2019 (State of Odisha and others Vrs. Shiba Charan Bal), disposed of on 06.03.2020, wherein order dated 26.07.2018 passed by the Odisha Administrative Tribunal, W.P. (C) No.7447 of 2021 Page 6 of 63 Cuttack Bench, Cuttack in O.A. No.2328(C) of 2017 has been affirmed. 3. Sri Shantanu Das, learned Additional Standing Counsel appearing for the opposite parties-State seeks a day‘s accommodation to advance his reply arguments. 4. List this matter tomorrow (23.07.2025) to be taken up at 2.00 P.M.‖ 4.1. Accordingly the matter being listed on 23.07.2025, the arguments were advanced by counsel for both sides and hearing was concluded. 4.2. The matter was kept reserved for preparation and pronouncement of judgment. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 5. Ms. Babita Kumari Pattanaik, Advocate appearing for the petitioner assisting Sri Manoja Kumar Khuntia, learned Advocate submitted that having joined as Junior Clerk on 14.06.1978 at Upper Kolab Dam Circle, the petitioner on getting transferred on 29.09.1986 worked in Eastern Circle, Cuttack and allowed to retire with effect from 31.07.2019 on attaining age of superannuation. 5.1. It is contended that the petitioner in the capacity of Junior Clerk was granted time-bound advancement taking into account the date of appointment as W.P. (C) No.7447 of 2021 Page 7 of 63 14.06.1978. As per RACPS on completion of 10, 20 and 30 years of service in a post, she is entitled to 1st, 2nd and 3rd upgradations. The petitioner has completed her 30 years of service on 14.06.2008 and she was entitled to 3rd RACPS in terms of the Finance Department Resolution dated 06.02.2013, with effect from 01.01.2013. When for all practical purposes the date of entry into Government service has been treated as 14.06.1978 (as reflected in the Service Book), non-grant of 3rd RACPS by fixing her grade pay at Rs.4,600/- in the wake of revision of grade pay in CSL Cadre (Ministerial) of Medium IP in the Department (Office) of Water Resources (EIC-Medium IP) inter alia from Rs.4,200/- (feeder post of Head Clerk) to Rs.4,600/- (Head Assistant, 1st Promotional Post) vide Finance Department by Notification No25323— PCC-Meet-1/2012 (pt.)/F., dated 19.09.2015, is contested vehemently by the petitioner in this writ petition. 5.2. Stemming on subsequent development, i.e., Finance Department Resolution No.5073— FIN-CS1-APPL-0001- 2024/F., dated 13.02.2025, which fact has been brought on record by way of an interlocutory application, being I.A. No.11608 of 2025, it is arduously argued that when the petitioner was granted the benefit of 3rd financial upgradation in terms of Revised Assured Career Progression Scheme under the Odisha Revised Scales of W.P. (C) No.7447 of 2021 Page 8 of 63 Pay Rules, 2008, effective from 01.01.2013, having been accrued on completion of 30 years of service commencing from 13/14.06.1978 and she was in receipt of Modified Assured Career Progression (MACP) on 29.09.2016 with grade pay of Rs.4,600/-, merely because she got promotion after 30 years of service and allowed to retire on superannuation, the opposite parties could not have adhered to revision of grade pay adhering to Finance Department by Notification No25323— PCC- Meet-1/2012 (pt.)/F., dated 19.09.2015. 6. Sri Shantanu Das, learned Additional Standing Counsel, though conceded that despite opportunity granted by the Division Bench in their writ appeal vide Order dated 20.03.2023 passed in W.A. No.1026 of 2022 filed against the order dated 04.03.2021 of the learned Single Judge in the present matter, the opposite parties did not choose to file any counter affidavit, submitted that the impugned action of the opposite parties in refixing the revised pay as is available in consonance with the Finance Department by Notification No.25323— PCC- Meet-1/2012 (pt.)/F., dated 19.09.2015 could not be questioned, as the competent authority has acted within the scope of the statutory notification. 6.1. He would submit that as is manifest from the entry in Service Book (Annexure-3) that the petitioner joined in the promotional post of Senior Clerk on 23.12.2011 on W.P. (C) No.7447 of 2021 Page 9 of 63 the strength of Office Order No.12 of 2012-13, and exercised option for fixation of promotional pay with effect from 01.06.2012, by re-fixing her grade pay attached to Senior Clerk no flaw could be attributed when the authorities have taken correctional measure. 6.2. Such action being in conformity with the Finance Department Notification No.25323— PCC-Meet-1/2012 (pt.)/F., dated 19.09.2015, he urged not to disturb the fixation of grade pay and made fervent request to dismiss the writ petition. Discussions and analysis: 7. For ready reference the RACPS, 2013, as it existed prior to Resolution dated 13.02.2025, is given hereunder: ―Government of Odisha Finance Department RESOLUTION No.3560/F/PCC(A)-49/2012 Date: 06.02.2013 Sub:- Revised Assured Career Progression Scheme (RACPS) for the State Government Employees. State considered Government The 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 W.P. (C) No.7447 of 2021 Page 10 of 63 State Government employees avail ACP in 3 stages i.e. 1st ACP on completion of 15 years of service, 2nd ACP after 25 years of service and 3rd ACP after 30 years of service in their original post/grade by addition of one increment @ 3% on the Basic Pay + Grade Pay with next annual increment after a period of one year from the date of sanction of the ACP. 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 to consider have come up with memoranda respect of in the MACPS implementation of employees of the State Government. into account the uncertain promotional Taking 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). 2. 3. 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.7447 of 2021 Page 11 of 63 1. 2. 3. REVISED ASSURED CAREER PROGRESSION SCHEME (RACPS): 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. 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. There shall be a Screening Committee to decide the eligibility of the persons for upgradation under RACPS. The Screening Committee shall follow a time in a financial year, schedule and meet twice preferably in the first week of January and first week of July every year for advance processing of the cases maturing in that half year. Accordingly, cases maturing during the first-half i.e. April to September of a particular financial year shall be taken up for consideration by the Committee in the first week of January. Similarly, the Screening Committee meeting in the first week of July shall process the cases that would be maturing during the W.P. (C) No.7447 of 2021 Page 12 of 63 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 pro forma 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, in the designation, there shall be no change 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. 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. 7. 8. The Pay Band PB-3 of Rs.15,600-39,100/- with Grade Pay of Rs.5400/- being the Group-A Entry Page 13 of 63 W.P. (C) No.7447 of 2021 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 of upgradations RACPS/Promotion. by way financial 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 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. of ORSP Rules, 2008 with 11. The RACPS shall also be applicable to work charged if their service conditions are employees, only comparable with the staff of regular establishment. W.P. (C) No.7447 of 2021 Page 14 of 63 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 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. in view the 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 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. W.P. (C) No.7447 of 2021 Page 15 of 63 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. then If a regular promotion in due course is refused by the employee before becoming entitled to a financial upgradation, there shall be no financial upgradation under RACPS as the employee has not been stagnated due lack of promotional to 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 the next for promotion again and considered financial upgradation shall also be deferred to the extent of period of debarment due to such refusal. for availing 17. Employees on deputation need not revert to the parent Department 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 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 W.P. (C) No.7447 of 2021 Page 16 of 63 Pay to the existing Pay but only the Grade Pay as applicable shall be allowed while giving RACPS. Sd/- Additional Secretary‖ 8. At the outset it is felt expedient to have overview of the terms “promotion” and “upgradation”. 8.1. The legal position regarding the distinction between upgradation and promotion is well-settled. In Union of India Vrs. Pushpa Rani, (2008) 9 SCC 24, the Supreme Court had examined and explained the difference thus: ―In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word ‗promotion‘ means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, 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.‖ 8.2. 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 ruling has been enunciated as under: W.P. (C) No.7447 of 2021 Page 17 of 63 ―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.‖ 9. It has been set forth in Bharat Sanchar Nigam Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 as follows: ―29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge: (i) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay 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 and consequences. connotations different have (ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without W.P. (C) No.7447 of 2021 Page 18 of 63 In an upgradation, there being movement from a lower position to a higher position. the candidate continues to hold the same post without any change the duties and responsibilities but merely gets a higher pay scale. in to everyone who satisfies (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 the available eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion is, its wider sense, advancement to a higher pay scale. that in (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 W.P. (C) No.7447 of 2021 Page 19 of 63 suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation. (v) Where the process is an upgradation simpliciter, there is no need to apply the rules of reservation. But where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply. (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.‖ 9.1. 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: W.P. (C) No.7447 of 2021 Page 20 of 63 ―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 consequence of case. The reorganisation of the cadre resulted in not only a mere re-description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all Telephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the 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). W.P. (C) No.7447 of 2021 Page 21 of 63 18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is ―to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.‖ 9.2. 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 the next promotional in 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 W.P. (C) No.7447 of 2021 Page 22 of 63 of the disparities and the consideration of all representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the the Sixth Central Pay recommendation 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. W.P. (C) No.7447 of 2021 Page 23 of 63 30. Observing that it is the function of the Government which normally acts on the recommendations of the Pay Commission which is the proper authority to decide upon the issues, in Union of India Vrs. P.V. Hariharan, (1997) 3 SCC 568, it was held as under: ‗5. for equal work‘ *** 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 is also being pay 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, for interfering with the fixation of pay scales. We have come across orders passed by Single Members 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 there would be no justification quite that and too W.P. (C) No.7447 of 2021 Page 24 of 63 one or the other ground, are 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: 32. 33. ‗11. There can be no denial of the legal position that decision of expert bodies 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. ***.‘ like 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. In State of Tamil Nadu Vrs. S. Arumugham, (1998) 2 SCC 198, the Supreme Court has observed that the Government has the right to frame a policy to ensure efficiency and proper administration and to provide to suitable avenues for promotion to officers working in different department. The Supreme Court has further observed that the Tribunal cannot substitute its own views for the views of the Government or direct new policy based on the views of Tribunal. 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 Page 25 of 63 W.P. (C) No.7447 of 2021 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: it though to bear in any employee ‗10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested 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 the additional liability of a revised scale of pay. *** That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a be unsustainable to W.P. (C) No.7447 of 2021 Page 26 of 63 proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. ***.‘ 35. The prescription of Pay Scales and incentives are matters where decision is taken by the Government based upon the recommendation of the expert bodies like Pay Commission and several relevant factors including financial implication and court cannot substitute its views. As held in Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the court should approach such matters with restraint and interfere only when the court is satisfied that the decision of the Government is arbitrary. Even in a case where the court takes the view that order/Scheme passed by the Government is not an equitable one, ordinarily only a direction could be given to the State Government or the authority for consideration of the matter and take a decision. In the present batch of cases where the respondents are claiming financial upgradation in the grade pay of promotional hierarchy, no grounds are made out to show that the MACP Scheme granting financial upgradation in the next grade pay is arbitrary and unjust; warranting interference. The implementation of the MACP Scheme is claimed to have led to certain anomalies; but as pointed out earlier, MACP Scheme itself is not under challenge.‖ 9.3. 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 W.P. (C) No.7447 of 2021 Page 27 of 63 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. 9.4. It can be culled out from the Revised Assured Career Progression Scheme under the Odisha Revised Scales of Pay Rules, 2008, that after the Central Government introduced a Modified Assured Career Progression Scheme (MACPS), the Government of Odisha in the Finance Department vide Resolution dated 6th February 2013 allowed the RACPS for the State Government employees with effect from 01.01.2013. In terms of the said RACPS, three financial upgradations are made available counted from the direct entry grade on completion of 10, 20 and 30 years of service in a 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; W.P. (C) No.7447 of 2021 Page 28 of 63 (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. 9.5. Per Paragraphs 2 and 4 of Annexure-I to the RACPS, it has further been stipulated that the financial upgradation under the RACPS would be admissible up to the highest Grade Pay of Rs.7,600/- in the Pay Band— PB-3 under the ORSP Rules, 2008 and shall be permissible with effect from 1st January 2013 in case of those employees only after regulation of their pay under the ORSP Rules, 2008. It is stated that on introduction of the RACPS, the ACP Scheme under the ORSP, 2008, ceased to be operational. 9.6. Further, under Paragraph 4 thereof, it was stipulated that there will be a Screening Committee to decide the eligibility of persons for upgradation under RACPS. Under paragraph 13, it was provided that if a financial upgradation of the RACPS was not allowed due to certain departmental proceedings, the case of the concerned employee would be reviewed in the W.P. (C) No.7447 of 2021 Page 29 of 63 subsequent years. In the event of disciplinary/penal proceedings, the grant of benefit under the RACPS would be subject to the rules/guidelines governing normal promotion and would be governed under the provisions of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962. 10. With the above backdrop, from the pleadings on record, submissions made and arguments advanced by counsel for respective parties, essential facts necessary for adjudicating as to whether the relief(s) claimed for “to refix the pension of the petitioner after granting 3rd financial upgradation in pay band-2 scale of pay of Rs.9,300/- to 34,800/- with grade pay of Rs.4,600/- under RACPS with effect from 01.01.2013 as per Notification dated 19.09.2015” can be granted are that: i. The petitioner joined in service as Lower Division Clerk on 14.06.1978; ii. Completed 30 years of service on 13.06.2008; iii. Joined the promotional post of Senior Clerk on 23.12.2011 after completion of around 32-33 years of service. 10.1. From the above factual position read with Paragraph 1 of Annexure-I appended to the RACPS, it is explicit that three financial upgradations shall be counted from the W.P. (C) No.7447 of 2021 Page 30 of 63 direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. The words “in a single cadre” being deleted vide Finance Department Resolution dated 13.02.2025 (which came into force with retrospective effect from 01.01.2013), it has become abundantly clear that the petitioner in terms of RACPS under the Odisha Revised Scales of Pay Rules, 2008 is entitled to 1st, 2nd and 3rd financial upgradation as on 13.06.2008 having completed 10, 20 and 30 years of service from date of entry into the service. 10.2. Notwithstanding the promotion being accorded to the petitioner in the post of Senior Clerk in the year 2012, that would not change the entitlement of the RACPS in terms of the Odisha Revised Scales of Pay Rules, 2008, as 10, 20 and 30 years of service as 30 years in service got completed by 2008 itself. 10.3. This Court is persuaded to take into consideration the treatment of ACP prior to 01.01.2013 for the purpose of consideration of RACPS. It has been explained in the decision of this Court in the case of State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839 that: ―A careful perusal of the RACPS introduced by the resolution of the FD dated 6th February 2013 reveals that even while introducing the said RACPS, the Government considered the recommendations of the fitment committee W.P. (C) No.7447 of 2021 Page 31 of 63 in and the prevalent system of granting TBA under the ORSP Rules, 1998 as well as the ACP under the ORSP Rules, its 2008. The RACPS Resolution acknowledges 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.‘ ***‖ 10.4. Regard may also be had to State of Odisha Vrs. Bihari Lal, 2016 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 W.P. (C) No.7447 of 2021 Page 32 of 63 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, followed. Clarification has no any legislative value, whereas a scheme being in absence of rule has got binding effect and to be followed by all in the Administration. Clarification by State Government has no legal force unless it is converted to an Act, 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 is entitled to RACP P.A. Scheme and as such ORSP Rules, 2008 will be applicable to them.‖ (Progress Assistants) scheme has be to W.P. (C) No.7447 of 2021 Page 33 of 63 10.5. The decision taken in the said Bihari Lal‘s case (supra), was not disturbed by the Hon’ble Supreme Court of India vide Order dated 23rd August, 2017 passed in SLP(C) Diary No.20358 of 2017 (State of Odisha Vrs. Bihari Lal Barik), which is as follows: ―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.‖ 10.6. 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. 10.7. To implement directions in Bihari Lal Barik (supra), the Finance Department brought forth the following Resolution dated 13.02.2025: ―Government of Odisha Finance Department *** No.FIN-CS1-APPL-0001-2024/5073/F. Date 13.02.2025 W.P. (C) No.7447 of 2021 Page 34 of 63 Sub.: Revised Assured Career Progression Scheme the State Government Employees (RACPS) effective under ORSP Rules, 2008— Modifications. for 1. Odisha Revised Scale of Pay Rules, 2008 was the State Government w.e.f. implemented by 01.01.2006 vide Finance Department Notification No.55244/F., dated 24.12.2008. Rule 14 of said ORSP Rules, 2008 provided for Assured Career Progression (ACP) Scheme for State Government employees on completion of 15, 25 and 30 years of service, in absence of promotion. 2. Thereafter, the ACP was substituted by Revised Assured Career Progression (RACP) Scheme w.e.f. 01.01.2013 vide Finance Department Resolution three No.3560/F dated 06.02.2013; ensuring financial upgradations to an employee counting from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. 3. However, Revised Assured Career Progression Scheme (RACPS) is now embroiled in litigations. Hon‘ble Court of Orissa, in Biharilal Barik case (i.e. W.P(C) No.2831/2016), has directed implementation of the RACP scheme in a particular manner. 4. Therefore, in exercise of power conferred under Rule 19 of the ORSP Rules, 2008, the Government is now pleased to bring following modifications in Para-1 and Para-10 of the RACP Scheme guideline issued vide this Department Resolution No.3560/F, dated O6.02.2013. (a) The words ―in a single cadre‖ mentioned in first sentence of Para-1 of Annexure-I of Finance Page 35 of 63 W.P. (C) No.7447 of 2021 Department 06.02.2013 are hereby deleted Resolution No.3560/F., dated (b) Para-10 of Annexure-I of the said Resolution is substituted by the following paragraph: ‗10. Benefit of pay fixation available at the time of regular promotion shall also be allowed at the the time of 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. financial upgradation under (i) The employees, who do not have any promotional hierarchy in their existing cadre nor have any scope for selection into a post of another cadre carrying higher pay, will get next the First in higher Grade Pay available Schedule of the ORSP Rules, 2008. (ii) The employees having only one or two promotional hierarchies in their existing cadre and not having any scope for selection into a post of another cadre carrying higher pay, will get Grade Pay attached to the promotional post(s) of their existing cadre and, thereafter, next higher Grade Pay available in the First Schedule of the ORSP Rules, 2008. (iii) The three employees having or more promotional hierarchies in their existing cadre; with/without having scope for selection into a post of another cadre carrying higher pay, will get Grade Pay attached to the promotional posts in their existing hierarchy, up to three promotions. W.P. (C) No.7447 of 2021 Page 36 of 63 (iv) The employees who do not have any promotional hierarchy in their existing cadre; but have scope for selection into a post of another cadre carrying higher pay, will get Grade Pay of the post of that another cadre subject to satisfying the eligibility criteria for selection to the said post of the said another cadre. However, if an employee does not satisfy the eligibility criteria for selection to the said post of the said another cadre, he will be entitled for next higher Grade Pay available in the First Schedule of the ORSP Rules, 2008. 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.‘ 5. Some illustrations are provided below on the RACP entitlement of applicable Grade Pay under ORSP Rules, 2008 as stated above in the modified Para-10 of Annexure-I of the said Resolution. Nature of employees Applicable RACP Illustration Sl. No. 1. (A) Employees who do any have not promotional hierarchy in their existing cadre nor have any scope for selection into a post of another cadre carrying higher pay. Next higher Pay Grade in available the First Schedule of ORSP the Rules, 2008. Demonstrator college of a Demonstrators are getting Grade pay of Rs.4200 in (Rs. PB-2 9300- 34800) They have neither any promotional post in their own cadre nor any for Scope Page 37 of 63 W.P. (C) No.7447 of 2021 to selection another cadre carrying higher pay. Therefore, they will get following GPs under RACP Scheme on of completion 10/ 20/ 30 years of service subject to fulfilling other conditions prescribed in F.D Resolution No.3560/F dated 06.02.2013. 1st RACP - GP of Rs.4600 2nd RACP - GP of Rs.4800 3rd RACP -GP of Rs.5400 (in PB-2) Junior Clerk under Revenue & DM Department Junior Clerks are getting Grade Pay of Rs.1900 P.B-1 in (Rs.5200- 20200) They have promotional Page 38 of 63 Pay to Grade attached the promotional post(s). Thereafter, next higher Pay Grade in available the First Schedule of the ORSP Rules, 2008. pay to Grade attached the promotional posts in their existing hierarchy, up to three promotions. (B) Employees having only one or two promotional hierarchies in their existing cadre and not any having scope for selection into of cadre another carrying higher pay. a post (C) Employees having or more three promotional hierarchies in their existing cadre; with or without having scope for selection into of another cadre carrying higher pay. a post W.P. (C) No.7447 of 2021 to the avenue post of Senior (Rs.2400), Clerk Clerk Head and (Rs.4200) Office Superintendent (Rs.4600) in their own cadre. They also have Scope for selection to the of ORS rank (Rs.4600). In such case, a Junior Clerk is not entitled for G.P of ORS i.e. Rs.4600 in 1st RACP. He will get GPs following RACP under on Scheme completion of 10/20/30 years of service subject fulfilling all to other conditions prescribed in F.D Resolution No.3560/F dated 06.02.2013. 1st RACP - GP of Clerk Sr. Rs.2400 2nd RACP- GP of Head Clerk Rs.4200 3rd RACP- GP of Office Supdt. Rs.4600 2. Employees who do not have any promotional hierarchy their existing cadre; but have scope for selection into a post of another cadre in Grade Pay of the post of that another cadre subject satisfying to VLW for (Eligible selection to the post of GPEO) VLWs are getting of Grade Pay W.P. (C) No.7447 of 2021 Page 39 of 63 carrying higher pay. the eligibility for criteria selection to the said post of the said another cadre. Rs.2000 in P.B-1 (Rs.5200- 20200) They have no promotional avenue in their own cadre. But they are for eligible consideration for selection to the post of GPEO carrying GP of Rs.4200 in P.B-2 (Rs.9300- 34800) Therefore, they will get following Grade Pay under RACP Scheme on of completion 10/20/30 years of service subject to fulfilling all conditions prescribed in F.D Resolution No.3560/F dated 06.02.2013 and satisfying also eligibility the criteria for selection to the post of GPEO 1st RACP -GP of GPEO Rs.4200 2nd RACP - GP of SDPO Rs.4600 3rd RACP -GP of DPO Rs.4800 / Rs.5400 (in PB- 2) w.e.f 19.06.2014 However, if an employee not does satisfy the eligibility criteria selection for to VLW (Not eligible for selection to the post of GPEO) VLWs not satisfy the eligibility criteria for selection to the post of Page 40 of 63 W.P. (C) No.7447 of 2021 the said post of the said another he cadre, be will entitled for next higher Pay Grade available in First the Schedule of the ORSP Rules, 2008 GPEO, will get next higher Grade Pay available in the First Schedule of the ORSP Rules, 2008 under RACP on completion of 10/20/ 30 years of service. Scheme 1st RACP- GP. of Rs.2200 2nd RACP - GP of Rs.2400 3rd RACP - GP of Rs.2800 6. 7. This modification shall take effect retrospectively from the date of implementation of the RACP Scheme, i.e. from 01.01.2013. Pre-conditions to avail RACP benefits as stipulated in Finance Department Resolution No.3560/F, dated 06.02.2013 shall remain unaltered. 8. Wherever required revised by in accordance with this modification, RACP benefit already sanctioned in favour of any serving or retired/superannuated employee shall be their pay/pension and arrear pay/pension shall be disbursed to the employee concerned, as admissible, irrespective of whether the employee has/had taken shelter of Court or not. Disposal/withdrawal of the Court case, if any, shall not be a pre-condition to revise RACP benefit and/or to disburse arrear pay/pension. revising By order of the Governor Sd/- 13.02.2025 Principal Secretary to Government‖ W.P. (C) No.7447 of 2021 Page 41 of 63 10.8. However, this Court wishes to take cognizance of Government of Odisha in Finance Department Resolution No. 26274— FIN-PCC-MEET-0001/2012/F., dated 08.08.2013, which reads as under: ―Government of Odisha Finance Department **** RESOLUTION No. 26274— FIN-PCC-MEET-0001/2012/F., dated 08.08.2013 Sub.: Revision of grade pay in certain posts with Grade Pay of Rs. 4200 and Rs.4600. Under ORSP Rules, 2008, the revision of pay has been effected on scale to scale basis with merger of scales of pay under the ORSP Rules, 1998 in Pay Bands. The pay bands constitute different Grade Pay. In Grade Pay Rs.4200 pertaining to Pay Band PB-2, seven pay scales existing under the ORSP Rules, 1998 were merged. As a consequence of such merger, some of the promotional scales existing under the previous pay rule are now placed in Pay Band PB-2 with same Grade Pay of Rs.4200. 2. 01.01.2013 The introduction of Revised Assured Career Progression (RACP) Scheme in Finance Department Resolution No.3560, dated 06.02.2013 with effect from financial upgradations at an interval of 10/20/30 years of the service career with stipulation in the said FD Resolution. As per the said Finance Department Resolution, services having defined line of promotion envisage three W.P. (C) No.7447 of 2021 Page 42 of 63 shall avail the Pay Band/Grade Pay of next promotional hierarchy. Due to same Grade Pay existing in many of the cadres having defined line of promotion the Grade Pay does not change as per the Scheme dated 06.02.2013 creating resentment among such cadres. The Service Association been representing for removal of such anomaly. cadres have thereby various of 3. After careful consideration of the recommendation of Anomaly Committee and in exercise of powers conferred under Rule 19 of ORSP Rules, 2008, Government have been pleased to incorporate the following changes in the Grade Pay of posts of different Departments mentioned at Table-I to mitigate such anomaly: i) Enhance the promotional Grade Pay of the cadres from Rs.4200 to Rs.4600 where the feeder post Grade Pay is Rs.4200. ii) With the feeder post grade pay of Rs.4200, where more than one promotional hierarchy is at Rs.4200 grade pay, the promotional posts shall be merged to one cadre with the grade pay Rs.4600. For example, the Section Officer, Level-II and Level-I in Heads of Department cadre shall be merged to one cadre of Section Officer with grade pay Rs.4600. iii) The grade pay of the next promotional post now carrying the grade pay of Rs.4600 shall be enhanced to Rs.4800. There are services in which the posts carrying grade pay of Rs.4600 gets filled up partly by direct recruitment and partly by promotion from a post now carrying W.P. (C) No.7447 of 2021 Page 43 of 63 grade pay Rs.4200. If the grade pay of such feeder posts is enhanced to Rs.4600 the grade pay of such promotional posts shall be enhanced to Rs.4800. Sl. No. Name of Departme nt Feeder post (Rs.9300 – 34800 + GP Rs.4200) 1st Promotional Post (Rs.9300- 34800 + GP Rs. 4600) 1 1 2 Home 3 4 ASO (Sectt/ Governor‘s Sectt OLA/OHC Senior Stenographer Supdt. (Issue) Asst. Jailor Level-II SO (Sectt/ Governor‘s Sectt OLA/OHC Personal Assistant Supdt. (Issue) Jailor Level-I 2 P.R. PA/GPEO ABDO/SDPO 3 W&CD ICDS Supervisor CDPO SEO/SA ADSWO 4 S&ME Assistant Teacher Head (Cl-III) Master 2nd Promotional Post Rs.9300- 34800 + GP Rs.4800) 5 Desk Officer Private Secretary — Jail Superintende nt DPO (Promotional) DSDO (Promotional) DSWO (Promotional) Head Master (Cl-II)/DI (Promotional) 5 Transport Sub-Inspector (Tr) Inspector (Tr) — 6 R&DM R.I. Revenue Supervisor 7 ST&SC Devp. WEO ADWO Jr. Consolidation Officer (Promotional) DWO (Promotional) 8 Finance Audit (CCA) Audit (LFA) Asst. Officer/ Superintendent Audit Audit Audit Officer W.P. (C) No.7447 of 2021 Page 44 of 63 9 Cooperati on Inspector Coop. Soc. of SARCS ARCS (Promotional) 10 HOD Senior Assistant SO, L-I & L-II both redesignated as Section Officer Establishment Officer 4. This resolution shall take effect from dt. 01.01.2013. The financial benefits shall be with prospective effect. Order: Ordered that the Resolution be published in Extra-ordinary issue of the Odisha Gazette. By order of the Governor Sd/- (U.N. Behera) Addl. Chief Secretary to Government‖ 10.9. Thus, the Government of Odisha also admitted that different departments had different anomaly peculiar to the posts available in the respective department. Thus, for no fault of the employee, the legitimate dues could not be withheld by the Government. 11. In the case at hand, the petitioner having completed 30 years of service as on 13/14.06.2008 calculating from the date of entry into service in terms of ORSP Rules, 2008, she was eligible and entitled to get the 3rd RACPS with effect from 01.01.2013. W.P. (C) No.7447 of 2021 Page 45 of 63 11.1. Perusal of copy of Service Book transpires that the petitioner joined in the promotional post of Senior Clerk on 23.12.2011. It, therefore, depicts that the petitioner has got promotion from Junior Clerk/Lower Division Clerk after 30 years of service and by then the grade pay was to be allowed as per the ORSP Rules, 2008 read with provisions of the RACPS promulgated thereunder. So, there could not have been any reduction of grade pay, to which the petitioner had already been entitled to. 11.2. The above view can find support from the following observation made in State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839: ―36. In the present case, the converse is true. What happened on 13th October 2009 was not really a promotion as is contended by the State. It was across the board and it was a re-fitment of the post of ACF as Group-A (Jr. Branch) with the promotion avenue to the post of DFO remaining intact. ACF was still the entry level grade. In order to remove the anomaly between the Forest Ranger being a Group B post, the post of ACF was re-designated as Group-A (Jr. Branch). This was en masse across the board. Therefore, there is merit in the contention of the Opposite Parties that this type of upgradation due to re-structuring is purely related to grant of financial benefit without involving any element of promotion. All the promotion avenues remained intact, i.e. the promotional avenue from Forest Ranger to ACF and ACF to DFO. This was, therefore, in terms of the law explained in Bharat Sanchar Nigam Limited Vrs. R. W.P. (C) No.7447 of 2021 Page 46 of 63 Santhakumari Velusamy, (2011) 9 SCC 510, a mere upgradation without any promotional benefit. 34. Upon carefully examining the Resolution dated 6th February, 2013, it is seen the above upgradation effected in 2009 as a result of restructuring of the cadre cannot be construed to be an upgradation which would deny the benefit of the RACPS which in any event was not in force at the relevant point in time. For the same reason, the TBA granted earlier in 2005 cannot be considered to be as an upgradation which would deny the Opposite Parties the benefit of the RACPS. In other words, merely because the employee had availed a TBA or ACP prior to 2013, he cannot be denied to the benefit of the RACPS. Unless a person has already got a promotion within time period of 10, 20 and 30 years in the manner indicated, he cannot be denied the RACPS benefit.‖ 12. In the case of Susanta Kumar Dash Vrs. State of Odisha, W.P.(C) No.18142 of 2020, this Court vide Judgment rendered on 22.09.2023, made the following observation, while deciding the question whether an employee having got promotion to the higher rank with higher Grade Pay, can again be eligible to get RACPS: ―24. 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 completed 10 years W.P. (C) No.7447 of 2021 Page 47 of 63 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 the 2nd RACPS will be considered employee upgradation. 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. Similarly, for an 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 w.e.f. was 01.01.2008, 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. subsequently RACPS 26. 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. The W.P. (C) No.7447 of 2021 Page 48 of 63 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. 27. 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 the eligibility conditions whether by way of qualification or otherwise. fulfil 28. 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.