Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.26518 of 2019 In the matter of an Application under Articles 226 & 227 of the Constitution of India, 1950 *** Soubhagya Ranjan Das, OAS (JB) Aged about 56 years Son of Late Baikunthanath Mallick At present working as Under Secretary Board of Revenue, (Main Board), Odisha Cuttack, PIN – 753 002. … -VERSUS- Petitioner 1. Development Commissioner-cum- Additional Chief Secretary to Government P & C Department, Government of Odisha Secretariat Building, Bhubaneswar District: Khordha – 751 001. 2. Principal Secretary to Government Finance Department, Government of Odisha Secretariat Building, Bhubaneswar District: Khordha – 751 001. 3. Principal Secretary to Government Law Department, Government Odisha Secretariat Building, Bhubaneswar District: Khordha – 751 001. 4. Principal Secretary to Government Revenue & Disaster Management Department W.P.(C) No.26518 of 2019 Page 1 of 28 Government of Odisha Secretariat Building Bhubaneswar District: Khordha – 751 001. 5. Director, Economics & Statistics Heads of the Department Building Government of Odisha, Bhubaneswar District: Khordha – 751 001. 6. Secretary Board of Revenue (Main Board) Odisha, Cuttack District: Cuttack – 753 002. 7. F.A.-cum-Additional Secretary to Govt. Revenue & Disaster Management Department (FA Cell), Government of Odisha Secretariat Building Bhubaneswar District: Khordha – 751 001. 8. Under Secretary to Government Revenue & Disaster Management Department Government of Odisha Secretariat Building Bhubaneswar District: Khordha – 751 001. … Opposite Parties. Counsel appeared for the parties: For the Petitioner : M/s. Manoja Kumar Khuntia, Gyana Ranjan Sethi, Ms. Babita Kumari Pattanaik Surendra Das, Advocates W.P.(C) No.26518 of 2019 Page 2 of 28 For the Opposite Parties : Mr. Jayanta Kumar Bal, Additional Government Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 14.02.2025 :: Date of Order : 28.02.2025 ORDER The petitioner, working as Under Secretary, Board of Revenue, (Main Board), Odisha, Cuttack, has sought to question the legality and propriety of instructions regarding fixation of scale of pay, grade pay, PB-III, Level-13 vide Letter No.RDM-GOEA-SANC-0060-2018— 9649/R&DM, dated 25.03.2019 (Annexure-8) issued by the Government of Odisha in Revenue and Disaster Management by reducing the same as had already been fixed by Office Order dated 16.11.2017 (Annexure-6) and reflected in the Service Book (Annxure-7) without following principles of natural justice, by way of instant writ petition invoking provisions under Articles 226 and 227 of the Constitution of India. Facts: 2. The petitioner, duly selected being appointed as Statistical Investigator vide appointment order No. 18270/DES/Estt. Gen. 05/91, dated 09.09.1991 of the W.P.(C) No.26518 of 2019 Page 3 of 28 Directorate of Economics and Statistics, under the P&C Department, joined on the said post as per the placement given to him at the District Statistical Office, Bhawanipatna in the District of Kalahandi on 09.09.1991. 2.1. Being transferred to different District Offices in the concerned Department, his service was then placed under the DSO, Kendrapara, DSO, Ganjam, D.R.C.S. Ganjam and D.R.C.S., Cuttack, under Cooperation Department. The petitioner, Senior most Statistical Investigator, was asked to discharge his duties as Senior Economic Investigator under the Public Enterprise Department, Secretariat Building, Odisha, Bhubaneswar. 2.2. While working under the Directorate of Economics and Statistics, Odisha the petitioner was subjected to transfer again on deputation to the District Rural Development Agency, Cuttack under the Administrative Control of Panchayati Raj Department. 2.3. He was given promotion and got transferred to different places, as Additional Tahasildar, Assistant Collector, Settlement Officer, Deputy Registrar, Deputy Collector and Tahasildar. The petitioner, at the time of filing the writ petition, was working as Under Secretary to the Board of Revenue, Odisha, at Cuttack. W.P.(C) No.26518 of 2019 Page 4 of 28 2.4. The petitioner claims to be entitled to the benefit extended in terms of Revised Assured Career Progression Scheme (―RACPS‖, for short) introduced by virtue of Finance Department Resolution No.3560— PCC(A)- 49/2012/F., dated 06.02.2013 in terms of the Odisha Revised Pay Scales Rules, 2008 (―ORSP, 2008‖ for brevity), as he completed 10 years of service on 08.09.2001 and completed 20 years of service on 08.09.2011 in the same grade and post without having any promotion since his entry into service on 09.09.1991. 2.5. The post that the petitioner held, i.e., Statistical Investigator, is the base level post. The next promotional avenue of the Statistical Investigator was/is the post of Assistant Director. Promotional post for Assistant Director is Deputy Director. The promotional hierarchy of the post of Statistical Investigator with pay-band and grade pay are given below: Sl. No. 1. Post/ Designation Statistical Investigator 2. 3. Assistant Director, Class- II OS & ES Cadre Deputy Director, Class-I, OS & ES Cadre W.P.(C) No.26518 of 2019 Pay Band + Grade Pay : Rs.9,300/- - Rs.34,800/- + Rs.4,600/- Pay Grade (Pay Band-2) : Rs.9,300/- - Rs.34,800/- + Rs.4,800/- Pay Grade (Pay Band-2) : Rs.15,600/- - Rs.39,100/- + Rs.6,600/- Pay Grade (Pay Band-3) Remarks Entry Grade 1st promotional post 2nd promotional post Page 5 of 28 2.6. It is explained by the petitioner that the manner of fixation on financial up-gradation being identical in comparison to the Government employees who are given promotions, such non-promoted Government employees are entitled to the same grade pay of Rs.4,800/- attached to the post of Assistant Director and next the same grade pay of Rs.6,600/- attached to the post of Deputy Director. To illustrate, the petitioner submitted
Legal Reasoning
that Sri Emuel Soren, started Government service as Statistical Investigator, Sri Umesh Mallick, started as Senior Economic Investigator and Sri Bhaskar Chandra Jena, started as Senior Economic Investigator were promoted to the post of Assistant Director and then to the post of Deputy Director, and they were allowed grade pay of Rs.4,800/- at the 1st instance of promotion and the grade pay of Rs.6,600/- at the 2nd instance of promotion, whereas the petitioner after completion of more than 22 years of service in one grade and post is entitled to the 1st and 2nd stage of financial up-gradation. 2.7. Though the petitioner was allowed 1st financial up- gradation with grade pay of Rs.4,800/- as available to the promotional post of Assistant Director, he was not allowed 2nd stage of financial up-gradation with the grade pay of Rs.6,600/- as available to the promotional post of Deputy Director. The petitioner, therefore, was constrained to approach the Odisha State Administrative W.P.(C) No.26518 of 2019 Page 6 of 28 Tribunal, Principal Bench, Bhubaneswar in O.A. No.323
Decision
of 2015, which came to be disposed of vide order dated 24.10.2017 with the following observation: “*** From the above it is clear that pay has to be fixed under the ORSP Rules, 2008 , but the modalities for awarding RACP shall be given under this scheme . On clear harmonious interpretation of paragraph-10 it is found that the employees of cadre having promotional hierarchy will get grade pay of the promotional post and in case the new grade pay corresponds to a different pay band, the employee will get pay band corresponding to upgraded grade pay. The letters of Finance Department on 20.01.2014 and 17.01.2015 stipulates that if the promotional post belongs to other category such upgradation shall not be allowed under RACP Scheme. Such clarification of Finance Department is absolutely contrary to paragraph 10 of the RACP Scheme because paragraph-12 has denied benefit of RACPS to the employee to promotional avenue under Recruitment Rules, whereas paragraph-10 allows the same. If any clarification is contrary to scheme, scheme has to be followed. Clarification has no statutory value , whereas a scheme in absence of rule has got binding effect and to be followed by those in administration. Clarification by respondents has no legal force unless it is converted to an Act, Rule, Regulation or Scheme or Columinates from such Act, Rules, Regulation and Scheme. Be that as it may, the applicant being holder of the post of “Statistical Investigator” not being promoted to Assistant Director is entitled to the benefit of RACP Scheme and as such ORSP Rules 2008 will be applicable to him. This ratio has been established by Hon‟ble High entitled W.P.(C) No.26518 of 2019 Page 7 of 28 Court of Orissa in W.P.(C) No. 2831 of 2016 in order dated 27.06.2016. Hence, that portion of Annexure- 3 i.e. the order of respondent No. 1 dated 12.06.2014 relating to applicant at serial No. 28 granting him grade pay of Rs. 5,400/- stands quashed. Respondents are directed to grant grade pay of Rs.6,600/- if he is entitled to second stage of upgradation under RACPS upon completion of 20 years of service with effect from 01.01.2013 of service with all consequential financial benefits. Entire exercise be completed within a period of three months from the date of receipt a copy of this order. With these order O.A. is disposed of.” 2.8. The Government in Department of P&C while considering the aforesaid direction in terms of the Finance Department Resolution dated 06.02.2013 placed the file for concurrence/approval of the Finance Department with regard to grant of Rs.6,600/- grade pay with effect from 01.01.2013 in favour of the petitioner. Accordingly, the Finance Department in its OSWAS File bearing No.PC-ES-ES-0021-2018, dated 19.03.2018, accorded concurrence to grant the grade pay of Rs.6,600/- with effect from 01.01.2013. In consequence of Finance Department concurrence, the Government vide Office Order No.5111, dated 13.04.2018 directed the Director, E&S, Odisha, Bhubaneswar to grant grade pay of Rs.6,600/- in favour of the petitioner with effect from 01.01.2013. W.P.(C) No.26518 of 2019 Page 8 of 28 2.9. Following the aforesaid Government decision, the Director, E&S, Odisha, Bhubaneswar vide letter dated 20.8.2018 directed the Collector-cum-District Magistrate, Dhenkanal, for transmission of the Original Service Book of the petitioner for grant of grade Pay Rs.6,600/- instead of Rs.5,400/- with effect from 01.01.2013. In pursuance thereof, the Collector-cum-District Magistrate, Dhenkanal, submitted the Original Service Book vide letter dated 17.09.2018 to the Director, E&S for modification of the grade pay to be fixed at Rs.6,600/- with effect from 01.01.2013. On receipt of the Original Service Book, the Director, E&S allowed the grade pay vide office order dated 16.11.2018 in favour of the petitioner by granting the grade pay of Rs.6,600/- with effect from 01.01.2013, thereby, fixed pay of the petitioner in the pay band-3, i.e., Rs.15,600/- - Rs.39,100/- with grade pay of Rs.6,600/-. The scale of pay as granted being due and admissible comes under level-13 of the pay band-3 along with the grade pay of Rs.6,600/-. Soon after the modification was made by granting the grade pay of Rs.6,600/-, the scale of pay of the petitioner was revised in the aforesaid order and accordingly, the same was recorded in the original service book of the petitioner. 2.10. While such being the position, without bringing to the notice of the petitioner, the Government of Odisha in W.P.(C) No.26518 of 2019 Page 9 of 28 Revenue and Disaster Management Department in its Letter bearing No.9649— RDM-GOEA-SANC-0060- 2018/R&DM, dated 25.03.2019 (Annexure-8) instructed Additional District Magistrate, Dhenkanal as follows: “In inviting reference to your memo No.2257 dated 17.09.2018 on the subject cited above I am directed to send herewith the Original Service Book of Sri Soubhagya Ranjan Das, OAS (JB), Deputy Collector, Dhenkanal for fixation of his pay under ORSP Rules, 2017, as follows: 1. On being promoted to ORS Group-B with effect from 21.06.2013— Pay Rs.16,480/- +GP Rs.4,600/- + Rs.2000/- (RPP) in the pre-revised scale. 2. On 01.01.2014— Pay Rs.17,120/- + GP- Rs.4,600/- + Rs.1,360/- (RPP). 3. On 01.01.2015— Pay Rs. 17,780/- + GP- Rs4,600/ + Rs. 700/- (RPP). 4. 01.01.2016 - Rs.18,460/- + GP Rs.4,600/- + Rs.20/- (RPP). The pay of Sri Das is fixed at Rs.59,500/- (Cell-3, Level- 12) as per Rule 13(xv) of ORSP Rules, 2017. His incremental Pay shall be fixed as follows: 1. 2. 01.01.2017— Rs.61,300/- (Cell-4, Level-12) 01.01.2018— Rs.63,100/- (Cell-5, Level-13) This has been concurred in by FA Cell of Revenue & D.M. Department.” W.P.(C) No.26518 of 2019 Page 10 of 28 2.11. Apprehending pecuniary loss would ensue pursuant to such decision of the Government, which is not only contrary to the Finance Department Resolution dated 06.02.2013 but also in violation of the entitlement with direction of the learned Odisha Administrative Tribunal in its order dated 24.10.2017 effect of which had already been given in Annexure-7 by taking conscious decision in the Letter vide Memo No.5582, dated 20.08.2018 of the Directorate of Economics and Statistics and Memo No.7046, dated 16.11.2018 of said Directorate on being concurred by Finance Department with P&C Department in OSWAS File bearing No.PC-ES-ES-0021-2018, dated 19.03.2018, the petitioner filed representation which is at Annexure-10. Counter affidavit of the opposite party Nos.4, 7 and 8: 3. In response to notice being issued by this Court in the writ petition, refuting the averments and contentions of the petitioner, counter affidavit has been filed inter alia asserting thus: “8. That, in reply to the averments made by the Petitioner in Para- 4 of the writ petition, it is humbly submitted that the petitioner continued in the post of Statistical Investigator for more than 22 years till his selection to Odisha Revenue Service against the recruitment year 2011. *** 12. That, in reply to the averments made by the petitioner in para-17 of the writ petition, it is humbly Page 11 of 28 W.P.(C) No.26518 of 2019 submitted that the petitioner was allowed to avail the benefit of 1st and 2nd RACP w.e.f. 01.01.2013 on completion of 20 years of service in the post of Statistical Investigator as per Finance Department Resolution No. 3560/F. dated 06.02.2013 and his pay was fixed at Rs.16,480/- + G.P. of Rs.6600/- with effect from 01.01.2013 in Pay band-3. On his subsequent appointment to Odisha Revenue Service, Group-B vide R&DM Department Notification No. 22504/R. dated 10.06.2013 and joining in the said cadre on 21.06.2013, his pay in the previous cadre was protected and on protection it was fixed at Rs.16,480/- + GP Rs.4,600/- + Rs.2000/- (RPP) in pay band-2. This was done in accordance with Finance Department Memo No. 1738/F. dated 20.01.2014 where an employee who has availed higher Grade Pay on account of availing RACP. is subsequently appointed to an ex-cadre post carrying lower grade pay, the pay of the employee shall be protected as per Protection of Pay Rules instead of being fixed under Rule 13 of ORSP Rules, 2008. *** The petitioner was not promoted to any higher post rather he was appointed to an ex-cadre post carrying lower grade pay of Rs.4600/- in PB-2 through „Selection‟ mode of recruitment. Through this mode of recruitment, he had opted to join a new cadre carrying lower pay scale as well as Grade Pay and as such his recruitment to ORS was not an elevation in natural process of promotion. However, not to make him suffer financially, his pay in the previous post was duly protected in the new post in ORS cadre allowing the differential grade pay in the manner of reducible personal pay (RPP). Fixation of W.P.(C) No.26518 of 2019 Page 12 of 28 pay under Rule 74(b) of the Odisha Service Code is not applicable in this case. 13. That, in reply to the averments made by the Petitioner in Para- 18 of the writ petition, it is humbly submitted that the fixation of pay of the petitioner in ORS (Group-B) cadre has been made allowing protection of his pay in the post in previous cadre as per Finance Department circular. His pay has not been fixed in the lower scale since in the new cadre of ORS his pay in previous post at Rs.16,480/- has been protected. Since grade pay for the post in ORS is Rs.4,600/-, his pay has been fixed with this grade pay but allowing him the benefit of Rs.2,000/- as Reducible Personal Pay (RPP) as per the criteria of pay protection.” Hearing: 4. Pleadings, being completed and exchanged between the learned counsel for respective parties, on their consent, this matter is taken up for final hearing at the stage of admission. 4.1. Accordingly, heard Sri Manoja Kumar Khuntia, learned Advocate appearing along with Ms. Babita Kumari Pattanaik, learned Advocate appearing for the Petitioner and Sri Jayanta Kumar Bal, learned Additional Government Advocate appearing for opposite parties. 4.2. On conclusion of hearing, the matter stood reserved for preparation and pronouncement of order. Rival contentions and submissions: W.P.(C) No.26518 of 2019 Page 13 of 28 5. Reiterating the facts as narrated in the writ petition, Sri Manoja Kumar Khuntia, learned Advocate submitted that it is not permissible for reducing grade pay from Rs.6,600/- to Rs.4,600/- notwithstanding the fact that the petitioner has been given post under Odisha Revenue Service (Recruitment) Rules, 2011 (for convenience referred to as ―ORS Rules‖). Amplifying his submission, he submitted that the plea taken by the opposite parties that the petitioner was appointed under said ORS Rules to an ex-Cadre post carrying a lower grade pay is not correct. 5.1. It is vehemently contended that there was no declaration or any provision under the ORS Rules stating that the post of Group-B are ex-Cadre and the contention of the opposite parties that the pay protection in case of petitioner as per Rule 74(b) of the Odisha Service Code is not applicable does not stand to reason. 5.2. Advancing argument further, Sri Manoja Kumar Khuntia, learned Advocate has made this Court to consider the fact that similarly situated persons in large numbers, who were moved under the newly restructured posts within the meaning of the Odisha Revenue Service (Recruitment) Rules, 2011 or the Odisha Taxation and Accounts Service Rules, 2011 have been granted the grade pay of Rs.6,600/- without reduction of pay in terms of Rule 74(b) of the Odisha Service Code. W.P.(C) No.26518 of 2019 Page 14 of 28 Therefore, he contended that there is no reason to deny the same benefit to the present petitioner. 6. Sri Jayanta Kumar Bal, learned Additional Government Advocate, save and except placing the stance of the opposite parties as mentioned in the counter affidavit has declined to explain the justification for reduction of grade pay which was granted in pursuance of direction of the learned Odisha Administrative Tribunal vide order dated 24.10.2017. However, he strongly contended that in view of Finance Department Memo No.1738/F., dated 20.01.2014, where an employee who has availed higher grade pay on account of availing RACP, is subsequently appointed to an ex-Cadre post carrying lower grade pay, the pay of the employee is protected. Discussion and conclusion: 7. The Government in Finance Department issued a Resolution for fixation of pay in RACPS, according to which there shall be three financial up-gradations counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single Cadre in absence of promotion. 7.1. On 13.06.2014, pay of the petitioner was fixed at 1st stage of up-gradation with grade pay of Rs.4,800/- and on completion of 20 years of service he was allowed Rs.5,400/- instead of grade pay of Rs.6,600/-. Grievance W.P.(C) No.26518 of 2019 Page 15 of 28 of the petitioner being considered by the Odisha Administrative Tribunal in O.A. No.323 of 2015 prayer was allowed to avail benefit of grade pay of Rs.6,600/- on completion of 20 years of service. 7.2. On 31.03.2018, the petitioner was appointed in Odisha Administrative Service by way of promotion. The Director, E&S, Odisha, Bhubaneswar directed the Collector-cum-District Magistrate, Dhenkanal to send the original service book of the petitioner for sanction of grade pay of Rs.6,600/- and consequently, he was granted scale of pay as is meant for Level-13 in pay band-3 having grade pay of Rs.6,600/-. 7.3. However, by letter dated 25.03.2019 the pay was instructed to be reduced and the grade pay is, thus, sought to be fixed at Rs.4,600/- as against Rs.6,600/- (Annexure-8). 8. By way of written notes of argument filed on behalf of the petitioner, Sri Manoja Kumar Khuntia, learned Advocate raised the following questions for consideration: i. Whether the petitioner was appointed to an ex- Cadre post? ii. Whether the appointment of petitioner in Odisha Revenue Service by way of Selection in accordance W.P.(C) No.26518 of 2019 Page 16 of 28 with Rule 4 of the Odisha Revenue Service (Recruitment) Rules 2011 is promotion? iii. Whether before reduction of pay the principles of natural justice is to be followed? 9. At the outset, it may be deserved to be stated that this Court in the case of Prasanna Kumar Gochhayat Vrs. State of Odisha, 2025 SCC OnLine Ori 172 referring to catena of decisions held that ―even ex-Cadre/isolated post holders are entitled to be extended with the benefit of RACPS under the ORSP Rules‖. 9.1. During the course of hearing Sri Manoja Kumar Khuntia, learned counsel for the petitioner has drawn the attention of this Court to a Finance Department Resolution bearing No.5073— FIN-CS1-Appl-0001- 2024/F., dated 13.02.2025, whereby modifications have been made to the RACPS under the ORSP Rules, 2008, which have been made effective from 01.01.2013. Said modifications inter alia provided as follows: “4. Therefore, in exercise of power conferred under Rule 19 of the ORSP Rules, 2008, the Government is now pleased to bring following modifications in Para-1 and Para-10 of the RACP Scheme guideline issued vide this Department Resolution No.3560/F, dated O6.02.2013: (a) The words „in a single cadre‟ mentioned in first sentence of Para-1 of Annexure-I of Finance W.P.(C) No.26518 of 2019 Page 17 of 28 Department Resolution No.3560/, dated 06.02.2013 are hereby deleted. (b) Para-10 of Annexure-I of the said Resolution is substituted by the following paragraph: „10. Benefit of pay fixation available at the time of regular promotion shall also be allowed at the the time of Scheme, which means the pay shall be raised by 3% of total of pay in the Pay Band and the Grade Pay drawn before such upgradation. financial upgradation under (i) The employees, who do not have any promotional hierarchy in their existing cadre nor have any scope for selection into a post of another cadre carrying higher pay, will get next higher Grade Pay available the First in Schedule of the ORSP Rules, 2008. (ii) The employees having only one or two promotional hierarchies in their existing cadre and not having any scope for selection into a post of another cadre carrying higher pay, will get Grade Pay attached to the promotional post(s) of their existing cadre and, thereafter, next higher Grade Pay available in the First Schedule of the ORSP Rules, 2008. (iii) The three employees having or more promotional hierarchies in their existing cadre; with/without having scope for selection into a post of another cadre carrying higher pay, will get Grade Pay attached to the promotional posts in their existing hierarchy, up to three promotions. W.P.(C) No.26518 of 2019 Page 18 of 28 (iv) The employees who do not have any promotional hierarchy in their existing cadre; but have scope for selection into a post of another cadre carrying higher pay, will get Grade Pay of the post of that another cadre subject to satisfying the eligibility criteria for selection to the said post of the said another cadre. However, if an employee does not satisfy the eligibility criteria.‟ **** **** **** **** 8. Wherever required revised by in accordance with this modification, RACP benefit already sanctioned in favour of any serving or retired/superannuated employee shall be their pay/pension and arrear pay/pension shall be disbursed to the employee concerned, as admissible, irrespective of whether the employee has/had taken shelter of Court or not. Disposal/withdrawal of the Court case, if any, shall not be a pre-condition to revise RACP benefit and/or to disburse arrear pay/pension.” revising 10. The ORS Rules, 2011 has been framed for regulating the methods of recruitment and conditions of service of persons appointed to the Odisha Revenue Service. As per Rule 3 thereof, the service consists of the following posts: (i) Assistant Collector; (ii) Assistant Settlement Officer; (iii) Assistant Consolidation Officer; W.P.(C) No.26518 of 2019 Page 19 of 28 (iv) Additional Tahasildar; (v) Sub-Registrar. 10.1. As per Rule 5 ibid., the post shall be filled up by way of direct recruitment 50% , by way of promotion @ 30% from among the officers of the Revenue Department and rest 20% posts shall be filled up by way of selection as envisaged under Rule 7. 10.2. The petitioner was appointed by way of selection in accordance with Rule 4(1) read with Rule 7 of the ORS Rules. 10.3. The Odisha Civil Services (Criteria for Selection for Appointment including Promotion) Rules, 20031 provides as follows: “1. Short title, commencement and application.— (1) These rules may be called the Orissa Civil Services (Criteria for Selection for Appointment including Promotion) Rules, 2003. (2) They shall come into force on the date of their publication in the Orissa Gazette. (3) They shall apply to all cases of appointment including promotion made to the State Civil Services and Posts. 1 These Rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, vide General Administration Department Notification No.19084-2R/1-11/2003-Gen., dated 09.07.2003 to regulate the criteria for selection initial appointment/promotion to the State Civil Services and Posts. W.P.(C) No.26518 of 2019 Page 20 of 28 *** 4. Promotion.— (1) The Departmental Promotion Committee or the Selection Board or the Selection Committee as the case may be, for the purpose of appointment by selection or promotion to any Service/Post shall prepare a list of persons of the feeder grade of that Service/Post who are considered by them to be suitable for such appointment. (2) The number of persons to be included in the list prepared under sub-rule (1) shall be 1.25 time the number of vacancies anticipated in the promotional Service/Post pertaining to that year: Provided that in case of promotion to Service/Post in which prior consultation with the Commission2 is list shall be forwarded to the mandatory the Commission with all for concurrence: requisite papers in included list unsuitable Provided further that if the Commission finds any person for the appointment to the Service/Post or if any such person included in the list retires from Government Service prior to the concurrence of the Commission, the Commission shall in his/her place insert the name of another person found suitable from out of the list of eligible persons under the zone of consideration. 5. Overriding Effect.— 2 As per Rule 2(a) of the Odisha Civil Services (Criteria for Selection for Appointment including Promotion) Rules, 2003, ―COMMISSION‖ means the Odisha Public Service Commission. W.P.(C) No.26518 of 2019 Page 21 of 28 The provisions of these Rules shall have overriding effect notwithstanding anything to the contrary contained in any other Recruitment Rules for the time being in force.” 10.4. It is, thus, urged by Sri Manoja Kumar Khuntia, learned Advocate that all promotion to the posts or grades of different services/civil post under the State Government are made by way of selection. Selection for such promotion are made on the basis of outstanding merit and suitability in all respects with due regard to seniority. As per said Rule in order to assess the suitability of an officer for promotion, the Odisha Public Service Commission, the Departmental Promotion Committee, the Selection Commission or Selection Board, as the case may be, shall scrutinize preceding five available Annual Confidential Character Rolls [Performance Appraisal Reports (for short called as, ―PARs‖)] and other documents, if any, having a bearing on the performance and conduct of all eligible officers, subject to reasons to be recorded, if it is considered expedient to refer to any earlier record to adjudge an officer’s suitability. The available Confidential Character Rolls/PARs are to be taken into consideration for promotion which includes CCRs/PARs covering at least a period of three years preceding five years. 10.5. It is profitable to quote here Rule 11 of ORS Rules, 2011: W.P.(C) No.26518 of 2019 Page 22 of 28 “11. Procedure for Selection by the Committee.— (1) The Committee shall meet at least once in a year preferably in the month of January to prepare two separate lists of officers, as are held by them, suitable for promotion and selection to the service taking into account the existing vacancies and the anticipated vacancies of the year. (2) The Committee while considering the cases of suitable officers and preparation f the list shall follow the provisions of: (a) The Odisha Reservation of Vacancies in Posts (for Scheduled Castes and and Services Scheduled Tribes) Act, 1975 and the Rules made thereunder or any other law/Rules in force at the relevant time. (b) (c) (Zone the Odisha Civil Consideration for Promotion) Rules, 1988. Services of The Odisha Civil Services Promotion) Rules, 1992 and (Criteria for (d) The Odisha Civil Services (Criteria for Selection for Appointment including Promotion) Ruels, 2003.” 10.6. On close reading of the aforesaid provisions, it is crystal clear that the selection of petitioner in accordance with the aforesaid provisions is a promotion. Hence, he is entitled to protection of his pay as laid down in the W.P.(C) No.26518 of 2019 Page 23 of 28 provisions made under Rule 74(b) of the Odisha Service Code3. 10.7. The analysis of aforesaid provisions makes it unambiguous that the services/posts of ORS is not ex- Cadre posts. After his promotion by way of selection in the Odisha Revenue Service, the petitioner was appointed in the Odisha Administrative Service on 31.03.2018 by way of promotion. Further, he was promoted to the OAS-I (Senior Branch) on 01.10.2022. Hence, it cannot be said that the petitioner was appointed to an ex-Cadre post and the action of the opposite parties in fixing the pay of the petitioner in a lower scale and reducing his grade pay is not tenable in the eye of law. Thus, the stand taken by the opposite parties in their counter-affidavit that the petitioner was selected in ex-Cadre post is not sustainable. 10.8. Sri Jayanta Kumar Bal, learned Additional Government Advocate has no reply to such contentions of Sri Manoja Kumar Khuntia, learned Advocate, save and except 3 Rule 74(b) of the Odisha Service Code stands thus: “(b) Where a Government servant holding a post, is promoted or appointed to another post carrying duties and responsibilities of greater Importance than those attached to the post held by him, his initial pay in the time- scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued: Provided that where a Government servant, immediately before his promotion or appointment to a higher post, is drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time- scale of the higher post shall be fixed at the stage, next above the pay notionally arrived at by increasing his pay in respect of the lower post by an amount equal to his last increment in the time-scale of the lower post.” Page 24 of 28 W.P.(C) No.26518 of 2019 making statement on the basis of the counter affidavit that ―his pay in the previous post was duly protected in the new post in ORS Cadre allowing the differential grade pay in the manner of reducible personal pay‖. However, he could not cite any provision of the statute in this regard. 10.9. It is placed on record that the learned Odisha Administrative Tribunal while disposing of O.A. No.323 of 2015 vide order dated 24.10.2017 applying the ratio of State of Orissa Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, disposed of on 27.08.2016 reported as State of Odisha Vrs. Bihari Lal, 2016 SCC OnLine Ori 333 categorically held that ―respondents (State of Odisha) are directed to grant grade pay of Rs.6,600/-, if he is entitled to second stage of up-gradation under RACPS upon completion of 20 years of service with effect from 01.01.2013 of service with all consequential financial benefits‖. The direction of the learned Odisha Administrative Tribunal has also been implemented. 10.10. It remained uncontroverted that the promotion in the Odisha Administrative Service has been accorded to the petitioner on 31.03.2018, whereas noticeably, the petitioner completed 20 years of service by 08.09.2011. As demonstrated in the ORS Rules, five categories of posts are notified to be consisted in the said service. Conjoint reading of Rule 7 and Rule 11 of the ORS Rules W.P.(C) No.26518 of 2019 Page 25 of 28 leaves no iota of doubt that the promotion is accorded by way of selection. Thus, the stance of the Government that Rule 74(b) of the Odisha Service Code does not appeal to this Court. 11. It is further case of the petitioner that documents enclosed at Annexure-12 series to the rejoinder affidavit have not been objected to by the opposite parties. 11.1. It is submitted by Sri Manoja Kumar Khuntia, learned Advocate that similarly situated persons have been granted relief, but not disturbed by the opposite parties, to which Sri Jayanta Kumar Bal, learned Additional Government Advocate has no explanation to proffer. 11.2. Therefore, it is quite obvious to take cognizance of the fact that when the Government has accorded identical benefit as that is claimed for by the petitioner to other similarly circumstanced persons/employees, there is no scope for the opposite parties to treat the petitioner differently. 12. For the discussions made above and reasons ascribed to supra, this Court does not find force in the arguments advanced by Sri Jayanta Kumar Bal, learned Additional Government Advocate. However, unambiguous position can be summarised as: i. The service/post of ORS is not ex-Cadre post. W.P.(C) No.26518 of 2019 Page 26 of 28 ii. Even otherwise, in view of Finance Department Resolution bearing No.5073— FIN-CS1-Appl-0001- 2024/F., dated 13.02.2025 having given effect to the RACP under the ORSP, 2008 from 01.01.2013 and Prasanna Kumar Gochhayat Vrs. State of Odisha, 2025 SCC OnLine Ori 172 the claim of the petitioner could not be denied on jejune grounds. 13. Under the aforesaid premises, while setting aside instructions to the Additional District Magistrate, Dhenkanal vide Letter No.RDM-GOEA-SANC-0060- 2018— 9649/R&DM, dated 25.03.2019 (Annexure-8) issued by the Government of Odisha in Revenue and Disaster Management, it is apposite to direct the opposite party No.6 (Secretary, Board of Revenue (Main Board), Odisha, Cuttack before whom the representation dated 17.06.2019 (Annexure-10), is stated to be pending, to consider grievance of the petitioner and dispose of in the light of observations made hitherto. 13.1. It may require clarity by impressing upon the authority that in the event such representation is viewed adverse to the claim of the petitioner, he deserves to be afforded an opportunity of being heard. 13.2. Appropriate orders thereon be passed thereafter which shall be communicated to the petitioner. W.P.(C) No.26518 of 2019 Page 27 of 28 13.3. It is hoped that endeavour is to be made to complete the entire exercise within eight weeks from today. 14. With the above observation(s) and direction(s) the writ petition stands disposed of, but in the circumstances there shall be no orders as to costs. (MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-Charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 28-Feb-2025 14:09:04 High Court of Orissa, Cuttack The 28th February, 2025//Aswini/Suchitra W.P.(C) No.26518 of 2019 Page 28 of 28