Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14847 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Khirod Behera …. Petitioner(s) -versus- State of Orissa Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. L.K. Mohanty, Adv. For Opposite Party (s) : Mr. Sonak Mishra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-20.08.2024 DATE OF JUDGMENT: -24.09.2024 Dr. S.K. Panigrahi, J.
Legal Reasoning
1. The Petitioner, through this Writ Petition, has challenged the order dated 19.03.2020 passed by the Director General of Police, Odisha, Cuttack wherein the DGP, Odisha rejected his claim for grant of 3rd RACP benefits with effect from 14.11.2014. I. FACTUAL MATRIX OF THE CASE: 2. The brief fact of the case as presented by the Petitioner: Page 1 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (i) The Petitioner having requisite qualification joined as Asst. Driver of Police vide order dated 15.11.1984 before the Superintendent of Police of Police Motor Transport, Cuttack. (ii) The Petitioner was granted different pay revisions from time to time. He was granted Time Bound Advancement Scale of pay as per ORSP Rule, 1998 with effect from 01.01.1996. He completed 15 years service by 16.11.1999 and accordingly, he was granted T.B.A benefit from that date. (iii) The Petitioner while discharging his duty at Dhenkanal District, faced a serious accident for which, his right leg was amputated. He was admitted to Capital Hospital, Bhubaneswar on 17.11.2002 and discharged from the Hospital on 22.12.2002. Thereafter he was referred to "NIRTAR" Olatpur for plantation of right leg. (iv) The Petitioner was granted 2nd ACP benefit in the year 2009 on completion of 25 years of service as his date of joining in service is 15.11.1984. (v) The Petitioner was not granted 3rd RACP benefit on the plea of refusal of promotion in the year 2011. The authorities have not considered the reason for refusal of promotion, knowingly very well that the Petitioner had faced serious accident in the year 2002 while he was in service and lost his right leg. Therefore, he is to be protected under the persons with disability equal opportunities (Protection Rights and Full Participation) Act, 1995. (vi) The Petitioner was discharged from service with effect from 31.05.2019 on voluntary retirement, on medical ground. Therefore, the Opposite Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 Parties may be directed to revise the pensionary benefits of the petitioner after grant of 3rd RACP benefits with effect from 14.11.2014. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions. (i) The Petitioner faced an accident while discharging his duty in the district of Dhenkanal dated 17.11.2002. He was discharged from the Capital Hospital Bhubaneswar on 22.12.2002 after amputation of his right leg. (ii) The Petitioner was promoted to the rank of Driver Havildar dated 30.10.2011. However, due to the accident and amputation of his right leg; the Petitioner was not inclined to accept the promotional post. (iii) The Finance Department passed a resolution dated 6.2.2013 to grant RACP benefit by that time the Petitioner was receiving G.P. of Rs. 2000/- as per ORSP Rules, 2008. (iv) The Petitioner was entitled for 3rd RACP benefits with effect from 14.11.2014 i.e. on completion of 30 years of service. However, he was not granted the said benefit on the plea that he forgo his promotion. (v) Due to illness and the accident, the petitioner applied for VRS in the year 2019, which was accepted by the Opposite Party No.3 vide order dated 31.05.2019. Thereafter, the Petitioner had filed writ petition vide W.P.(C) No. 29389 of 2019 before this Court with a prayer to direct the Opposite Party No.2 to grant 3rd RACP benefit in his favour with effect from 14.11.2014. The said writ petition was disposed of by this Court vide order 9.01.2020 directing the Opposite Party No.2 to consider the Page 3 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 grievance of the Petitioner taking note of the Judgment of the Apex Court in Kunal Singh v. Union of India and others.1 However, the Opposite Party No.2 rejected his claim vide order dated 19.03.2020 with the same plea that as the Petitioner had forgone his promotion in the year 2011, he is not entitled for 3rd RACP benefit. (vi) The Petitioner had forgone his promotion in the year 2011 due to the accident faced by him in the year 2002 in which his right leg was amputed. Therefore, his case may be considered by the Opposite Parties sympathetically for grant of 3rd RACP benefits taking into consideration the Judgment of Apex Court of India as referred above. Hence, the order of rejection dated 19.3.2020 passed by the Opposite Parties No.3 may be quashed and the Opposite be further directed to grant Grade Pay Rs. 2800/- as 3rd RACP benefits in favour of the petitioner w.e.f 14.11.2014 and thereafter refix his pay as per ORSP Rules, 2017 with effect from 1.1.2016 and release all his arrears due as admissible. As the petitioner has superannuated from service with effect from 31.5.2019, the pension and pensionary benefits may kindly be fixed accordingly. III. SUBMISSION OF THE OPPOSITE PARTIES : 4. Per contra, learned counsel for the Opposite Parties intently made the following submissions: (i) The Petitioner had joined as Asst. Driver of Police vide order dated 15.11.1984. He was allowed to get pay revision from time to time like the Time Bound Advancement Scale of pay as per ORSP Rule, 1998. In 1 AIR 3 S.C. 1623 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 the year 2002 while the Petitioner was discharging his duty at Dhenkanal district, he met with an accident and his right leg was amputed on 17.11.2002. (ii) The Petitioner was allowed to continue in service and in the year 2009, he was granted his 2nd ACP benefit. After completion of 25 years of service in the year 2011, the Superintendent of Police, Dhenkanal issued the promotion order dated 30.10.2011 by promoting the Petitioner to the rank of Driver Havildar. But, due to amputation of one leg, he did not incline to take the benefit of the said promotion. (iii) The Finance Department passed resolution dated 06.02.2013 to grant "Revised Assured Career Progression" benefit to the State Government Employees due to stagnation in promotion. As per the said Scheme, an employee on completion of 10, 20 and 30 years of service will get 1st, 2nd & 3rd RACP. Though the Petitioner’s pay was revised as per ORSP Rules, 2008, he was not granted with the benefit of 3rd RACP, as he had forgone his promotion in the year 2011. In the year 2019, the Petitioner applied for VRS on medical ground, which was accepted by the Superintendent of Police, Deogarh. (iv) As the Petitioner was denied with 3rd RACP, he approached this Court in W.P.(C) No.29389 of 2019 which was disposed of on 09.01.2020 directing the Director General of Police, Odisha, Cuttack to take a lawful decision on the representation filed by the Petitioner taking into account the decision in the case of Kunal Singh (supra). In compliance with the said order, the Director General of Police vide order dated 19.03.2020 rejected the prayer of the Petitioner. Page 5 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (v) While passing the impugned order, the Director General of Police has not followed the ratio decided by the Supreme Court in the case of Kunal Singh (supra). Further, as per paragraph-16 of the resolution dated 06.02.2013, if an employee refuses the promotion without any cogent reason, he is not eligible for RACP benefits. (vi) In the present case, the Petitioner refused to take the promotion due to his physical disability, which he sustained during his service career. This aspect has not been considered by the Opposite Party No. 2 while passing the impugned order. (vii) Though the nature of work of Asst. Driver of Police and Driver Havildar is almost similar in nature, the authority allowed him to work in the post of driver even after accident. Therefore, as per Clause 16 of the Finance Department Resolution dated 06.02.2013, the Petitioner is not eligible to be considered for further financial up-gradation. (viii) So far as the ratio decided in the case of Kunal Singh (supra) is concerned, the same is not applicable to the facts and circumstances of the present case. Here the service of the Petitioner has not been terminated by the authority owing to his disability. The RACP claim was rejected, as he has submitted his written willingness to forgo his promotion to the rank of Driver Havildar and he has taken voluntary retirement in the year 2019. IV. COURT’S REASONING AND ANALYSIS:
Legal Reasoning
5. I have heard the learned counsel appearing on behalf of the respective parties at length and perused the material placed on record: Page 6 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 6. It is trite in law that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she/he has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit the offered promotion, for his own personal reasons. 7. In Union of India v. Manju Arora,2 the Supreme Court examined the purpose of Assured Career Progression Scheme and opined that it was intended as a “safety net” to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. The RACP Scheme was introduced by the government with appropriate modification on the basis of the recommendation made by the Fifth Central Pay Commission, the court said. Taking note of the conditions, the bench observed: “As can be seen, the benefit of the financial upgradation under the ACP Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition No. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non-acceptance of such promotion would impact only their second upgradation. With such finding, the respondents were held entitled to the relief under the ACP Scheme, although it was a case of refusal of promotion offered to the employee.” 2 (2022) 2 SCC 151 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 8. The Court opined that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. The court observed: “This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting. 18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Consequently, it is declared that the employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999.” 9. In Manju Arora (supra), the court summoned the Scottish doctrine of “Approbate and Reprobate” springs to mind and cited the decision of the House of Lords in Lissenden v. CAV Bosch Ltd.3 wherein Lord Atkin observed that: “…………In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other…………. 3 1940 A.C. 412 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 The above doctrine is attracted to the circumstances in this case. The concerned employees cannot therefore be allowed to simultaneously approbate and reprobate, or to put it colloquially, “eat their cake and have it too.” 10. The RACP Scheme was introduced by the government to address the problem of stagnation and to provide relief to employees who face limited promotional opportunities. It was designed as a remedial measure to ensure that employees are not unfairly disadvantaged due to the lack of advancement within their cadre. The purpose of this scheme is to guarantee career progression and financial stability for those who may not be able to secure promotions through the normal channels. However, its benefits are not meant to override personal choices made by the employees during their service tenure. 11. In the case at hand, while this Court is sympathetic to the petitioner’s unfortunate illness and the challenges he faced as a result, this does not change the fact that the petitioner, by his own volition, declined a promotion when it was duly offered to him. This decision, made voluntarily, has consequences on his entitlement to certain benefits, especially pensionary advantages. The petitioner cannot now claim inflated pensionary benefits at the level of the promoted post, which he chose not to accept at the time. His current entitlements must reflect the position he held and the decisions he made during his service. Page 9 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 12. It is crucial to recognize that while unfortunate circumstances can evoke sympathy, the legal framework is clear that personal decisions during service, especially those related to promotions and career advancement, directly affect post-retirement benefits. The RACP Scheme is designed to prevent stagnation, but it does not extend benefits beyond what is fair and justified based on an employee’s career choices. Consequently/ the petitioner cannot seek pensionary benefits that align with the post he voluntarily declined to accept. V. CONCLUSION 13. In light of the facts and circumstances of the present case, this Court finds no merit in the current Writ Petition. The Petitioner has not succeeded in establishing grounds for interference with the impugned order dated 19.03.2020. 14. In light of the foregoing, this Writ Petition is dismissed and
Decision
disposed of in terms of the aforesaid observations. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 24th Sept., 2024/ Page 10 of 10