The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32110 of 2020 Sunil Kumar Dash …. Petitioner Mr.K.K. Swain, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 18.03.2024 Order No. 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present writ petition inter alia with the following order:- “(a) a writ of mandamus or an appropriate writ may be issued quashing the impugned orders dated 14.09.2019 and 13.10.2020 passed by the Block Education Officer, Rajnagar under Annexures:10 and 16 respectively and the petitioner maybe allowed to avail the grade pay of Rs.4,600/- as he was getting earlier and his pay may be revised in terms of the ORSP Rules, 2017 with effect from 01.01.2016 and the differential arrears consequent upon fixation of his pay may be made available to him and his pension may be enhanced accordingly within a time to be stipulated by this Hon’ble Court. (b) And any other order / orders or direction / directions may be issued so as to give complete relief to the petitioner”. // 2 // 4. It is contended that the Petitioner while continuing as a Headmaster in Thakur Basudev NUPS, Nagada, he was extended with the benefit of 3rd RACP with grade pay of Rs.4,600/- w.e.f. 01.01.2013 vide order issued on 19.10.2015 by B.E.O., Rajnagar-Opposite Party No.4 under Annexure-3. 4.1. It is contended that subsequent to getting the benefit of 3rd RACP with grade pay of Rs.4,600/- w.e.f. 01.01.2013, Petitioner availed the benefit of promotion to the rank of Level-IV vide order dtd.29.10.2013 w.e.f. 01.11.2013 and to Level-III vide order dtd. 28.02.2014 w.e.f. 04.03.2014 under Annexure-6-Series. Subsequent to availing the benefit of promotion when grade pay allowed in favour of the Petitioner at Rs.4,600/- as 3rd RACP vide order under Annexure-3 was suo motu revised to Rs.4,200/- vide order dtd.14.09.2019 under Annexure-10 and with a further direction to recover an amount of Rs.45,704/- from the Petitioner, Petitioner being aggrieved by such action of Opposite Party No.4 when represented to allow him to continue with the benefit of order dtd.19.10.2015, the matter was reexamined by Opposite Party No.4. 4.2. But vide order dtd.13.10.2020 under Annexure-16, the order passed earlier under Annexure-10 was confirmed on the ground that Petitioner since has availed the benefit of promotion, he has been rightly allowed the grade pay of Rs.4200/- in terms of the stipulation Page 2 of 6 // 3 // contained in Para-10 of the Resolution dtd.06.02.2013 and subsequent clarification issued by the Finance Department on 20.01.2014. 4.3. Learned counsel for the Petitioner contended that since in terms of the Resolution issued by the Finance Department on 06.02.2013, Petitioner became entitled to get the benefit of 3rd RACP w.e.f. 01.01.2013, the same was duly allowed vide order dtd.19.10.2015 under Annexure-3 with Grade Pay of Rs.4,600/-. Not only that since Petitioner was getting the benefit of grade pay at Rs.4,200/- in the shape of 2nd RACP, the next grade pay available is at Rs.4600/- which was rightly extended in favour of the Petitioner in the shape of 3rd RACP vide order under Annexure-3. Since the Petitioner availed the benefit of promotion much after he became eligible to get the benefit of 3rd RACP, which was duly sanctioned in his favour vide order under Annexure-3, the same could not have been reduced to Rs.4,200/- vide the impugned order dtd.14.09.2019 under Annexure-10 so confirmed vide order dtd.13.10.2020 under Annexure-16. 4.4. It is accordingly contended that the reduction of grade pay from Rs.4,600 to Rs.4,200 as 3rd RACP vide the impugned order under Annexure-10, further confirmed vide Annexure-16 with the direction to recover the excess payment are not sustainable in the eye of law and it requires interference of this Court. Page 3 of 6 // 4 // 5. Learned Addl. Standing Counsel for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that Petitioner though was allowed with the benefit of 3rd RACP with grade pay of Rs.4,600/- vide order under Annexure-3, but since he availed the benefit of promotion to Level-IV and Level-III vide order dtd.29.10.2013 and 28.02.2014 under Annexure-6-Series, in view of the provisions contained under Para-10 of the Resolution dtd.06.02.2013 under Annexure-A/4 and clarification issued by the Finance Department on 20.01.2014 under Annexure-C/4, Petitioner’s grade pay was rightly reduced to Rs.4,200/-. The stipulation contained in Para-10 of the Resolution dtd.06.02.2013 under Annexure-A/4 and the clarification at Para-16 in that regard available under Annexure-C/4 are reproduced hereunder:- “10. Benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial up gradation 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 up gradation. 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 of ORSP Rules, 2008 with 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”. 16. How the pay of an employee is to be Fixed under RACP Scheme where the next promotional post in the cadre carries the same Grade Pay? The pay of an employee shall be fixed in the manner laid down u/r 13 of ORSP Rules, 2008 without change of Grade Pay subject to adjustment of benefits already availed in shape of T.B.A/ACP under ORSP Rules, 1998 and ORSP Rules, 2008 respectively in terms of Para-18 (Annexure-1) of F.D. Resolution NO.3560/F Dt.06.02.2013. Page 4 of 6 // 5 // 5.1. It is accordingly contended that in view of the provisions contained in the Resolution issued under Annexure-A/4 and the clarification issued under Annexure-C/4, Petitioner’s grade pay has been rightly reduced to Rs.4,200/- and it requires no interference. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that Petitioner was extended with the benefit of 2nd RACP in the shape of grade pay of Rs.4,200/-. Subsequently, Petitioner was also held eligible to get the benefit of 3rd RACP with grade pay of Rs.4,600/- w.e.f. 01.01.2013 vide order issued on 19.10.2015 under Annexure-3. As found from the record, Petitioner got the benefit of promotion to Level-IV vide order dtd.29.10.2013 and to Level-III vide order dtd.28.02.2014 under Annexure-6-Series. Since by the time the Petitioner availed the benefit of promotion he had already been extended with the benefit of 3rd RACP with grade pay of Rs.4,600/- which was otherwise due to the Petitioner w.e.f. 01.01.2013, the ground on which the grade pay was reduced to Rs.4,200/- vide order under Annexure-10 and so confirmed vide order under Annexure-16, as per the considered view of this Court is not sustainable in the eye of la law. 7. In view of the same, this Court is inclined to quash the Office Order dtd.14.09.2019 so issued under Annexure-10 and subsequent order passed on Page 5 of 6 // 6 // 13.10.2020 under Annexure-16 by Opposite Party No.4. While quashing both the orders, this Court upheld the initial order passed by the self-same Opposite Party on 19.10.2015 under Annexure-3.
Decision
8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Mar-2024 18:24:50 Page 6 of 6