The High Court · 2024
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2024 12:14:15 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9586 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Rabindra Kumar Das …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
This Court in State of Odisha and another vs. Bihari Lal Barik and others, 2016 SCC OnLine Ori 333 has explained as follows:- “12. From the aforesaid provision it is revealed clearly that post of G.P.E.O. and P.A. shall be filled up by direct recruitment and by promotion from eligible Village Level Worker with proportion of 60:40, Rule-13 of the G.P.E.O. Rules, 2002 has also specified that a V.L.W. is eligible for promotion if he has passed High School Certificate Examination with 10 years of experience as V.L.W. and in the event of Scheduled Caste and Scheduled Tribe the relaxation can be made for two years. From the aforesaid Rules it appears that when there is promotional avenue and promotional eligibility has been prescribed by the G.P.E.O. Rules, 2002, it cannot be said that W.P.(C) No.9586 of 2020 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2024 12:14:15 V.L.W. has no promotional hierarchy at all. On the other hand, the G.P.E.O. Rules, 2002 having been framed under Article 309 of the Constitution of India have got provisions for promotional avenue to the post of G.P.E.O. and P.A. We are, therefore, of the view that the V.L.W. has got promotional hierarchy in the State cadre having been appointed under the V.L.W. Rules, 1994 and subsequently amended Rules, 2008. xxx xxx xxx 16. From the aforesaid analysis of the RACP of paragraph-10 it is clear that the pay will be fixed under the ORSP Rules, 2008, but the modalities for awarding RACP would be given under this Scheme. On clear harmonious interpretation of paragraph-10 it is found that the employees of cadre having promotional hierarchy will get Grade Pay of the promotional post and in case the new Grade pay corresponds to a different Pay band, the employee will get Pay band corresponding to upgraded Grade pay. Here the learned Addl. Government Advocate drew our attention to a clarification issued by the State Government in the Finance Department on 20.1.2014 at paragraph-12. According to said paragraph-12 the grade pay of promotional post which belongs to other cadre shall not be allowed under RACP Scheme even if the former post being only the feeder post of that promotional post and the RACP is confined to the cadre only. He further stated that it has been further clarified in paragraph-12 that such promotion shall be to an ex-cadre post and the period of service for RACP on the promotional post shall be reckoned afresh from the date of joining in that post. Such clarification is absolutely contrary to paragraph- 10 of the RACP Scheme because paragraph-12 has denied benefit of RACPS to the employee entitled to promotional avenue under recruitment Rules, whereas paragraph-10 of RACPS allow same. If clarification is contrary to scheme, scheme has to be followed. W.P.(C) No.9586 of 2020 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2024 12:14:15 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, Rule, Regulation or Scheme or Columinates 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 opp. Party no.1 as V.L.W. being not promoted to the post of G.P.E.O. and P.A. is entitled to RACP Scheme and as such ORSP Rules, 2008 will be applicable to them. xxx xxx xxx” 9. In the case at hand, 1994 Regulations having effect of rules framed under Article 309 of the Constitution of India is operating for the post of Junior Despatcher and the conditions of service of the Petitioner thereof. Further, said rules speak for promotional hierarchy. So, it would be grossly unjust on the part of the Opposite Parties not to extend the benefits of RACP Scheme and ORSP Rules, 2008 in favour of the Petitioner to grant him the Grade Pay in the higher post, particularly when the Petitioner has continued in the post of Despatcher for more than 30 years as on 1.1.2013, being appointed as such on 24.2.1989. Therefore, the Petitioner is found entitled for the Grade Pay in the higher post of Senior Asst., i.e. @Rs.4200/-. 10. It is submitted that the Petitioner has retired in the meantime on 31.5.2024 on attaining the age of superannuation. 11.
Arguments
: Ms. Babita Kumari Pattanaik, Advocate For Opposite Parties : Mr. J. Khandayat Ray, A.S.C. Ms. K.P. Mudali, Advocate for O.P. Nos.2 & 3 (OPSC) CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 27th November 2024 B.P. Routray, J. 1. Heard Ms. Babita Kumari Pattanaik, learned counsel for the Petitioner, Mr. J. Khandayat Ray, learned Additional Standing Counsel for the State-Opposite Party No.1 and Ms. K.P. Mudali, learned counsel on behalf of Mr. Pradipta Kumar Mohanty, learned Senior Counsel for Opposite Parties 2 & 3-Odisha Public Service Commission. W.P.(C) No.9586 of 2020 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2024 12:14:15 2. The Petitioner’s claim for grant of higher Grade Pay on account of RACP Scheme, 2013 in the promotional post has been rejected under Annexure-11. This is the subject matter of challenge in present writ petition. 3. As per Annexure-11, the claim of the Petitioner was rejected in absence of cadre rule and promotional posts. Opposite Parties 2 & 3 have reiterated the same reason in their counter also. 4. Ms. Pattanaik, learned counsel for the Petitioner submits that, there is a cadre rule in the name of Odisha Public Service Commission (Method of Recruitment and Conditions of Service of Staff) Regulations, 1994 (in short, ‘1994 Regulations’) governing service conditions of Junior Despatchers and the hierarchy of posts thereof. Therefore, it is not correct to say on the part of the Opposite Parties regarding absence of any cadre rule and promotional posts. 5. 1994 Regulations has been framed by the Governor of Odisha in exercise of power conferred under Article 309 of the Constitution of India. Said Rules, as seen from Annexure-2, prescribe that the post of Junior Despatcher shall be made on the basis of seniority subject to elimination of unfit from the cadre of Class-IV staff. The post of Senior Despatcher has been recognized under Rule-8 from the post of Junior Despatcher and further, as per Rule 10(1)(b), 10% of vacancies in the post of Senior Asst. shall be filled up by recruitment of eligible Senior Grade Typists/Senior Grade Diarists/ Senior Grade Recorders W.P.(C) No.9586 of 2020 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2024 12:14:15 and Senior Grade Despatchers in the office of the Commission subject to satisfaction of the prescribed qualification. 6. As stated above, it is clear from the Rules that, the Junior Despatcher is entitled for promotion in the hierarchy upto Senior Asst. Therefore, the observation made in Annexure-11 while rejecting the claim of the Petitioner and the statements made in the counter affidavit that there was no promotional posts are rejected. 7. The Odisha Public Service Commission (‘OPSC’) has relied on a clarification issued under the ORSP Rules dated 20.1.2014 (Annexure-A/2) to say that, “If an employee completes 30 years of service before 01.01.2013 without any promotion then his/her pay shall be fixed stage-wise in the Pay Band and Grade Pay of 1st promotional post, then 2nd promotional post and finally 3rd promotional post on 01.01.2013 without being directly fixed in 3rd promotional post.” 8.
Decision
In the result, the writ petition is allowed and the Opposite Parties are directed to release such financial benefits in favour of the Petitioner W.P.(C) No.9586 of 2020 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2024 12:14:15 by re-fixing his Grade Pay @Rs.4200/-, applicable for the post of Senior Asst. from the date of his entitlement as per the RACP Scheme 2013, within a period of four months from the date of receipt of a certified copy of this order. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.9586 of 2020 Page 6 of 6