The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.2825 of 2018 Sri Narahari Panda …. Petitioner -versus- State of Odisha & Others …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No
Decision
ORDER 27.02.2023 06. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S.K. Ojha, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Government Advocate for the State. 3. The Petitioner is aggrieved by the rejection of his claim to get the benefit of RACP vide the order communicated on 20.07.2016 under Annexure-4 by Opposite Party No.2. 4. Learned counsel for the Petitioner contended that the Petitioner while continuing as a Draughts man, he refused to avail the benefit of promotion by giving an undertaking on 15.11.2011 vide Annexure-B to the counter affidavit. In view of such undertaking given on 15.11.2011, the Petitioner was not extended with the benefit of RACP. However, the Petitioner vide his letter dated 23.11.2014 under Annexure-1 to the Writ Petition, when gave his consent for consideration of the claim to the promotional post, Opposite Party No.3 in consideration of that and taking into account the clarification issued by the Finance Department on 20.01.2014 vide Annexure-8 submitted the proposal for sanction of 3rd RACP // 2 // in favour of the Petitioner vide letter dated 11.12.2015 under Annexure-3. 4.1. It is contended that without considering the proposal so submitted under Annexure-3 taking into account the provision contained under Para-16 of the guidelines issued for sanction of RACP vide resolution dated 06.02.2013 under Annexure-C and the clarification issued by the Finance Department on 20.01.2014 under Annexure-8, the proposal was regretted by the Opposite Party No.2. 4.2. Mr. Ojha, learned counsel for the Petitioner contended that in view of the provision contained under Para-16 of the resolution issued under Annexure-C to the counter, it has been clearly indicated that an employee shall, however not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the next final upgradation shall also be deferred to the extent of period of debarment due to such refusal. 4.3. It is further contended that in the clarification issued on 20.01.2014 under Annexure-8, the said period of deferment has also been clarified and accordingly in view of such clarification coupled with the provision contained under Para-16, the petitioner became entitled to get the benefit of 3rd RACP. Opposite Party No.3 in consideration of Para-16 read with the clarification dated 20.01.2014 also submitted the proposal before Opposite Party No.2 for grant the benefit of 3rd RACP in favour of the Petitioner. However, the Opposite Party No.2 without proper appreciation of the provision contained under Para-16 and the clarification issued on 20.01.2014 under Annexure-8 rejected the said proposal by refusing to consider the claim so recommended vide his order dated 20.07.2016 under Annexure-4. Page 2 of 5 // 3 // 5. Mr. Ojha, accordingly contended that the impugned order under Annexure-4 is not sustainable in the eye of law and liable for interference of this Court. 5.1. Mr. S.K. Samal, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since the Petitioner on his own submitted an undertaking on 15.11.2011 vide Annexure-B, he is not entitled to get the benefit of 3rd RACP. The undertaking at Annexure-B reads as follows:- “I do hereby undertake that I am forgoing my promotion to the post of Senior Draughts man for ever and I am willing to continue in the Post of Droughts man. Further, I do undertake that I will not claim my promotion in future”. The Petitioner in view of the provision contained under Para-16 is not eligible to get the benefit of 3rd RACP. 5.2. Mr. Samal, contended that in Para-16 of the resolution dated 06.02.2013, it has been held as follows:- “If a regular promotion in due course is refused by the employee before becoming entitled to a financial upgradation, then there shall be no financial upgradation under RACPS as the employee has not been stagnated due to lack of promotional opportunities. If, however, special 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”. 5.3. Mr. Samal accordingly contended that since the Petitioner on his own forgo his promotion forever, in view of the provision contained in the first part of Para-16, the Petitioner is not eligible to get the benefit of RACP and the same has been rightly rejected by Opposite Party No.2 vide the impugned order at Annexure-4. Page 3 of 5 // 4 // 6. Having heard learned counsel for the Parties and after going through the materials available on record that it is not disputed that the Petitioner submitted an undertaking on 15.11.2011 vide Annexure-B to the counter forgoing his promotion forever. Because of such nature of undertaking given by the Petitioner, the Petitioner was not extended with the benefit of RACP, which came into existence w.e.f. 01.01.2014. However, when the Petitioner gave his consent for his consideration to the next higher post by way of promotion on 23.11.2014 under Annexure-1, Opposite Party No.3 taking into account the subsequent provision contained in Para-16 of the resolution dated 06.02.2013 as well as the clarification issued on 20.01.2014 under Annexure-8 submitted the proposal for sanction of 3rd RACP in favour of the Petitioner. It is found that the Opposite Party No.2 without proper appreciation of the provision contained in the 2nd part of Para-16, which is indicated hereinabove and the clarification issued on 20.01.2014 rejected the said proposal vide the impugned order at Annexure-4. 6.1. In view of the clear provision contained in the 2nd part of Para- 16, which provides that when the claim for financial upgradation can be considered again, if the concerned employee agrees to be considered for promotion, and in the present case since vide Annexure-1, the Petitioner has given his consent as such, as per the considered view of this Court, the Petitioner is entitled to get the benefit of 3rd RACP and his case was rightly recommended by the Opposite Party No.3 under Annexure-3. 6.2. Therefore, this Court is inclined to interfere with the impugned order at Annexure-4. While interfering with the same, this Court is inclined to quash the order at Annexure-4 and while quashing the same directs the Opposite Party No.1 to sanction the benefit of 3rd Page 4 of 5 // 5 // RACP in favour of the Petitioner from the date of his entitlement taking into account the recommendation at Annexure-3. The entire exercise shall be completed within a period of two months from the date of receipt of this order. 8. Accordingly, the Writ Petition stands disposed of. Subrat (Biraja Prasanna Satapathy) Judge Page 5 of 5