The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) Nos.590, 591, 592, 593, 594, 595, 596, 597, 598, 599 & 600 of 2015 Tankadhar Barik …. Petitioner Mr. M.K. Sahoo, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 06. 1. This matter is taken up through Hybrid Arrangement
Decision
ORDER 11.05.2023 (Virtual/Physical) Mode. 2. Heard Mr. M.K. Sahoo, learned counsel appearing for the Petitioners and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. All the present writ petitions have been filed inter alia with similar prayer and accordingly all were heard analogously and disposed of by the present common order. 4. For reference the prayer made in one of the writ petition is quoted hereunder:- “Under the above facts and circumstances, it is humbly prayed that this Hon'ble Tribunal may be graciously pleased to allow this Original Application by granting following reliefs: // 2 // (A) Necessary order/orders be passed directing the Opp. Parties, to release all financial benefits under the RACP scheme by re-fixing his scale pay with three stages of financial up-gradation + grade pay on completion of 10, 20 and 30 years of service, if necessary by declaring the clarification made available at paragraph-2 of the Govt. clarificatory letter under Annexure-3 is irrational and unreasonable or not applicable to the case of the applicant in hand as a Junior Clerk of Govt. taken over high school; (B) And in alternative any order/orders, direction/directions be passed so as to give complete relief to the Applicant as deemed fit and proper in the given facts and circumstances of the case.” 5. Learned counsel for the Petitioners contended that all the Petitioners were initially appointed in different schools as Jr. Clerk under District Education Officer, Keonjhar. It is contended that in view of their appointment and continuance as Jr. Clerk in different High Schools coming under O.P. No. 3 and there being no rules governing their service condition, they were deprived to get the benefit of promotion from their initial posting as Jr. Clerk. Taking into account such position, all the Petitioners were extended with the benefit of TBA & ACP. But subsequently when the benefit of RACP was note extended even though they are eligible, the present writ petitions were filed. Page 2 of 6 // 3 // 6. Mr. S. Rath, learned ASC on the other hand contended that the service condition of the Petitioners were initially governed under the Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistance in the District Offices and Offices of Heads of Departments) Rules, 1963 and subsequently the service condition of the Petitioners were governed under the Odisha Ministerial Services (Method of Recruitment to the Post of Junior Clerks in the District Offices) Rules, 1985 which was subsequently superseded by the Odisha Ministerial Services (Method of Recruitment and Conditions of Service of Junior Assistants, Senior Assistants and Section Officers in the District Offices and Offices Sub-ordinate thereto) Rules, 2019. 6.1. It is contended that in terms of the 1963 Rules though there was provision for getting the benefit of promotion under Rule 9, but since the Petitioners have not passed the departmental examination, they are not eligible to get the benefit of promotion and accordingly on that ground they were not extended with the benefit of RACP. This Court after going through the 1963 Rules finds that as per Rule 2(a), definition given to the word “District Offices” reads as follows:- ““District Offices” means the Offices of District Collector and includes the Office of Settlement Officer, Deputy Director of Consolidation of Holdings and Deputy Director of Survey and Map Publication, Orissa;” Page 3 of 6 // 4 // 6.2. Similarly under the 1985 rules, the word “District Office” as per Rule 2(c) of the Rules reads as follows:- “"District Office" means an office subordinate to and under the administrative control of a Head of Department mentioned in Appendix 3 of the Orissa Service Code and includes the Office of a Heads of Department as aforesaid to which the Orissa Ministerial Services Method of Recruitment to Posts of Junior Assistant in the Office of Heads of Departments Rules, 1975 do not apply and the Ministerial Service cadre which consists of Junior Clerks and Senior Clerks;” 6.3. The word “District Offices” under Rule 2019 has been defined as follows:- “"District Office" means an office subordinate to and under the administrative control of a Head of Department mentioned in Appendix 3 of the Odisha Service Code and includes the Office of a Heads of Department as aforesaid to which the Odisha Ministerial Services Method of Recruitment to Posts of Junior Assistant in the Office of Heads of Departments Rules, 1994 do not apply and the Ministerial Service cadre which consists of Junior Assistants (Junior Clerks) and Senior Assistants (Senior Clerks);” 6.4. It is accordingly contended that since all through there is provision to avail the benefit of promotion under different Rules and the Petitioners could not get the benefit of promotion due to non-passing of the departmental examination, the Petitioners cannot claim the benefit of RACP and they are not eligible to get the same. Page 4 of 6 // 5 // 7. To the aforesaid submission of learned ASC, Mr. Sahoo contended that as per the definition given to the “District Office” under 1963 Rules as well as 1985 Rules, the establishment in which the Petitioners are continuing does not come within the purview of such definition. However, Mr. Sahoo fairly contended that the establishment in which the Petitioners are continuing falls within the definition of Rule 2(e) of the 2019 Rules. 7.1. It is accordingly contended that since from their initial date of appointment and joining, till the formation of the Amended Rules, 2019, there was no rule entitling them to get the benefit of promotion, the Petitioners were extended with the benefit of TBA & ACP. The Petitioners are accordingly entitled to get the benefit of RACP, which came into operation w.e.f.01.01.2013. 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the definition given to the “District Offices” in the 1963 Rules as well as 1985 Rules as depicted hereinabove, does not include the Department in which the Petitioners are continuing. But the definition of the word “District Office” so given under the 2019 Rules clearly indicates the inclusion of the Petitioners’ Department under the word “District Office”. So it is the view of this Court that Page 5 of 6 // 6 // till formulation of the 2019 Rules, the services conditions of the Petitioners were not governed under any Rule. 8.1. In view of such finding of this Court and the extension of the benefit of TBA & ACP, this Court is of the opinion that the claim of the Petitioner to get the benefit of RACP needs consideration by the Opp. Parties. Therefore, this Court while disposing the writ petitions, directs the Opp. Party No. 3 to take a decision on the entitlement of the Petitioners to get the benefit of RACP taking into account the circulars/guidelines issued by the Govt. in that regard. On such consideration if it is found that the Petitioners are otherwise eligible to get the benefit of RACP, the same shall be extended in their favour. The entire exercise shall be under taken and completed by the O.P. No. 3 within a period of three (3) months from the date of receipt of this order. 9. The writ petition is disposed of accordingly. 10. Photocopy of the order be placed in the connected case records. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: Cuttack Date: 15-May-2023 19:40:47 Page 6 of 6