The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No. 3533 of 2015 Prasanna Kumar Pradhan …. Petitioner Mr. M.K.Khuntia , Adv. -versus- State of Odisha & Ors. …. Opp.Parties Mr.S.N.Das, ASC CORAM: DR. JUSTICE S.K.PANIGRAHI Order No.
Decision
ORDER 30.01.2023 05 1. This matter is taken up through hybrid arrangement. 2. Heard learned counsel for the petitioner and learned counsel for the State. 3. By way of this writ petition, the petitioner has challenged the actions of the Opposite Party No.4/ Superintendent of Police, CID, CB, Odisha, Cuttack in cancelling the order dated 18.09.2014 wherein the Petitioner was allowed to financial upgradation with effect from 01.01.2013 under RACP scheme on the ground that the said action is illegal, arbitrary and in violation of cardinal principles of natural justice. Page 1 of 8 // 2 // I. FACTS OF THE CASE 4. Shorn of unnecessary details, the substratum of matter presented before this Court remain that the Petitioner entered into service as a constable 01.01.1979. Subsequently, he was promoted to the post of ASI on 23.07.1999. Further, on recommendation of the CSB the Petitioner got promotion to the rank of S.I of Police on 05.08.2007. By the time of promotion to the S.I. of Police, he has completed thirty years of service. Due to suffering from several ailments, he has forgone his promotion. 5. Subsequently, the Government issued a Resolution dated 06.02.2013 for fixation of pay as per Revised Assured Career Progression Scheme (RACPS). As per the said resolution, there shall be 3 financial upgradations under the RACP Scheme, counted from the direct entry grade on completion of 10, 20 & 30 years of service in a single cadre in absence of promotion. An employee if completed 10 years of service in entry grade will be considered for 1st upgradation, an employee who has completed 20 years of service and has got one upgradation either by promotion or by RACP will be considered for 2nd Page 2 of 8 // 3 // upgradation. Similarly, an employee who has completed 30 years of service and has got two upgradation either by RACP or promotion or both will be considered for 3rd upgradation. 6. On 20.01.2014, the Government issued a clarification for guidance in implementing the benefits extended under RACP scheme. In Clause-5 of the said resolution, a clarification was made whether the benefit under RACP scheme shall be given to an employee who forgoes regular promotion in the cadre due to certain problem for certain period but thereafter, gives consent for same. A clarification was issued by the finance department in this regard that the benefit under RACP scheme shall be deferred to the extent of period of debarment from the date of actual entitlement. 7. In due course, the Screening Committee vide notification dated 06.02.2013 recommended the case of Petitioner for 1st stage of upgradation for promotion as ASI of Police with grade pay Rs. 2800/-, 2nd stage upgradation with grade pay Rs. 4200/- and 3rd stage financial upgradation with grade pay Rs.4600/- with effect from 01.01.2013 as he has completed 10 years of service as on 01.01.1989, 20 years as on 01.01.1999 and 30 Page 3 of 8 // 4 // years on 01.01.2009. However, the Opposite Party No.3 vide his letter dated 25.06.2015 instructed the Opposite Party No.4 to clarify under what circumstances the Petitioner has been allowed RACP benefits when he has forgone his promotion in the rank of S.I. of Police. 8. In response to the letter dated 25.06.2015 the Opposite Party No.4 vide his letter dated 07.08.2015 has clarified that as per Finance Department Letter dated 20.01.2014 an employee who has completed 10, 20 and 30 years of service prior to 01.01.2013 shall be eligible for RACP benefits from 01.01.2013 in stagewise i.e. 1st promotional post, 2nd promotional post and finally 3rd promotional post without being directly fixed in 3rd promotional posts subject to fulfilment of conditions RACP scheme including all norms of promotion in the respective stages of financial upgradation. It was further clarified that the applicant has completed 30 years of service as on 01.01.2009, he was allowed 3rd financial upgradation due to career stagnation as on 01.01.2009 despite refusal to the subsequent promotion. But, the respondent No.4 by order dated 14.09.2015 cancelled the financial upgradation granted to the petitioner vide order dated Page 4 of 8 // 5 // 18.09.2014 and directed for recovery of overdrawal amount from the pay of the applicant. 9. Learned counsel for the petitioner further refers to the judgment of this Court passed in WPC (OAC) No .219 of 2016 wherein similarly placed persons have been granted RASPS in the said judgment. The extract of which is given hereunder; from 18.08.1995 17. The Petitioner became entitled to 1st financial upgradation under RACPs for his service (in absence of promotion) to 17.08.2005. Accordingly, he became eligible for RACP benefit form 01.01.2013 as the scheme was brought into effect from 01.01.2013. It needs to be understood that the entitlement for financial upgradation is based on the period of service and the manner in which it was discharged. The benefit under the scheme for such entitlement is to be given with effect from 01.01.2013. The scheme cannot be construed in a way to mean that the entitlement accrued on 01.01.2013. facts narrated conspectus of 18. hereinabove, this Court is of the view that the order dated 05.12.2015 passed by the Opposite Party No.3 is arbitrary and erroneous and, is hereby set aside. The Petitioner’s claim, being devoid of any infirmity, is accordingly allowed. 19. In the final evaluation, the Writ Petition is allowed. There shall be no order as to costs. the In 10. On the otherhand, learned counsel for the opposite party Nos.2,3 and 4 submits that when the petitioner Page 5 of 8 // 6 // was selected for promotion to the rank of S.I. of Police, he refused to take promotion. Accordingly, he was not allowed to assume higher charge in the rank of S.I. vide Office Order No.327/Board dated 27.02.2007. Interpretation of the Govt. Resolution as well as the subsequent clarification issued by Government in Finance Department by the petitioner is not correct. He also draws attention of the Court to the Point No.16 of Resolution dated 06.02.2013 and Point No.5 of Clarification on RACPs dated 20.01.2014 are given hereunder for better appreciation: 16. If a regular promotion in due course is refused by the employee before becoming entitled to a financial upgradation, then there shall be no the financial upgradation under RACPs as employee has not been stagnated due to lack of promotional opportunities. If, however, financial upgradation has been allowed due to stagnation and subsequent promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion financial upgradation shall also be deferred to the extent of period of debarment due to such refusal. the next employee refuses again and the the 5. Whether the benefit under RACP scheme shall be given to an employee who forgoes regular promotion in the cadre due to certain problem of Page 6 of 8 // 7 // his/her own for certain period but thereafter, gives consent for the same? In this situation the benefit under RACP Scheme in favour of an employee shall be deferred to the extent of period of debarment from the date of actual entitlement. 11. From the above resolution, it has been clearly made out that 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. Allowing the said benefit was wrong on the part of the office due to misinterpretation of the resolution which was modified subsequently vide CB DO No.596 dated 14.09.2015. 12. However, on perusal of the order passed in the aforesaid case, it was found that the employees in the said case had forgone the promotion but later the petitioner consented for promotion. But, the present case is not similar to the aforesaid case as the petitioner has not given consent before retirement even long after refusal to take promotion. 13. In such view of the matter, the petitioner’s case cannot be stated to be at par with the case of the present Page 7 of 8 // 8 // petitioner. Hence, this Court is not inclined to grant any relief to the present petitioner. 14. Accordingly, the WPC(OAC) stands dismissed. (Dr.S.K.Panigrahi) Judge LB Page 8 of 8