Supreme Court of India
The State Of Odisha vs Satya Narayan Behura on 28 February, 2020
Author: Uday Umesh Lalit
Bench: Uday Umesh Lalit, Vineet Saran
1 NONREPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1851 OF 2020 [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.22181 OF 2019] STATE OF ODISHA & ORS. ...APPELLANTS VERSUS SRI SATYA NARAYAN BEHURA …RESPONDENT WITH CIVIL APPEAL NO.1852 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.22184 OF 2019] CIVIL APPEAL NO. 1853 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.22185 OF 2019] CIVIL APPEAL NO. 1854 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.22186 OF 2019] CIVIL APPEAL NO. 1855 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.20571 OF 2019] CIVIL APPEAL NO. 1856 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.20100 OF 2019] CIVIL APPEAL NO. 1857 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.20420 OF 2019] CIVIL APPEAL NO.1858 OF 2020, [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.320 OF 2020] AND Signature Not Verified Digitally signed by INDU MARWAH Date: 2020.02.28 18:52:58 IST CIVIL APPEAL NO.1859 OF 2020, Reason: [ARISING OUT OF SPECIAL LEAVE PETITION [C] No.5389/2020 Dy. NO.4351 OF 2020] 2 JUDGMENT
Vineet Saran, J.
2. The facts in all the appeals are similar, hence for the
purpose of convenience, the Civil Appeal No.1851 of 2020, arising
out of SLP(C) No.22181 of 2019, is being treated as the lead appeal
and its facts are being dealt with and considered hereunder.
3. The respondent joined as an Assistant Conservator of
Forest (ACF), GradeB on 06.11.1990, in the office of the
Divisional Forest Officer, Ghumsur North Division, Bhanjanagar,
Odisha. At the relevant time, Orissa Revised Scales of Pay Rules,
1998 (for short, ‘ORSP Rules, 1998’) were in force. Rule 8 of the
said Rules provided for Time Bound Advancement (for short
“TBA”) scales to be given on completion of 15 years and 25 years
of service, which was in case the employees who had not availed
such benefit of promotion or TBA scales.
The Orissa Revised Scales of Pay Rules,2008 (for short, ‘ORSP
Rules, 2008’) were notified, which came into force w.e.f.
01.01.2006. Rule 14 provided for Assured Career Progression (for
short, ‘ACP’) which could be availed in three stages i.e. on
completion of 15 years, 25 years and 30 years of service in their
original post or grade and such benefit of ACP was to be given only
after screening each and every case by the Screening Committee to
be constituted by the Department.
Then, on 06.02.2013, Government of Orissa promulgated
the Revised Assured Career Progression Scheme (for short, ‘RACP
Scheme’) for State Government employees, which was given effect
from 01.01.2013. According to the same, three financial
upgradations were to be accorded on completion of 10 years, 20
years and 30 years of service in a single cadre, which was in the
absence of any promotion. Thereafter, on 23.02.2016, an Office
Memorandum was issued by the Government of Orissa, which
was a clarification to the effect that whenever there is an
upgradation and the financial factor is taken into account, the
same would fulfil the spirit of the RACP Scheme.
4. Considering the fact that the respondent had already
availed the benefits of the Rules and the Scheme, by an Order
dated 07.08.2016, it was directed that the financial upgradation
sanctioned to the respondent was to be withdrawn, as excess
payment had been made to him, and a formal Order to this effect
was issued on 29.08.2016.
5. The respondent claims that the upgradation and other
benefits given to the respondent were well within the provision of
the Rules and the RACP Scheme and as such he filed an O.A.
No.762 of 2017 before the State Administrative Tribunal,
Bhubaneswar (for short, ‘the Tribunal’) with the following prayers:
“i) The Hon’ble Tribunal may be pleased
to quash the impugned order vide
No.16046 dated 29.08.2016, and
ii) The Hon’ble Tribunal further be
pleased to quash the impugned O.M.
dated 23.02.2016, as the same is
contrary to the Resolution dated
06.02.2013 and is not applicable to the
applicant and further be pleased to
declare that the order dated 24.02.2015
has been issued rightly.”
By its Order dated 16.11.2017, the Tribunal allowed the O.A. of
the respondent (along with other connected O.As), the operative
portion of which is reproduced below:
“…….The Govt. of Orissa, Finance
Department office Memorandum dt.
23.2.2016 on the basis of which the
impugned order dt. 29.8.2016 has been
passed is not tenable because the
Finance Department Office
Memorandum dt. 23.2.2016 is not in
consonance with the RACP scheme i.e.
resolution dt. 6.2.2013 and therefore,
the resolution is to be followed and not
the Office Memorandum dt. 23.2.2016.
When the benefit of grade pay of
Rs.7600/ has been granted to the
applicants after completion of 20 years
of service as 2nd upgradation w.e.f.
1.2.2013 by the order passed in 2015
in terms of the resolution dt. 6.2.2013,
the same cannot be withdrawn merely
on the basis of subsequent clarification
given by the Finance Department office
Memorandum dt. 23.2.2016.
Hence, all the O.As are allowed.
The impugned order dt. 29.8.2016
stands quashed. The applicants be
allowed to continue in the grade pay of
Rs.7600/ towards 2nd upgradation
under RACPs in P.B.3 in the scale of
pay Rs.15600/ to Rs.39100/.”
6. Challenging the same, the Appellant, State of Orissa
filed Writ Petition (C) No.19368 of 2018, which has been
dismissed by Judgment and Order dated 03.01.2019. Hence,
this Appeal by the State of Orissa.
7. The contention of Ms. V. Mohana, learned Senior
Counsel appearing for the appellant, State of Orissa, is that the
respondent, on completion of 15 years of service, was allowed
Time Bound Advancement (TBA) scale on 10.11.2005 under the
ORSP Rules, 1998. Thereafter, on 13.10.2009 the second
upgradation, amounting to promotion, was accorded to the
respondent, by which the respondent was accorded GroupA
Junior Branch status to ACF (entry grade post). Then, on
05.06.2010, a third promotion by way of pay upgradation was
accorded to the respondent, whereby the respondent was
promoted to OFS (GroupA) Senior Branch. It has been
contended that the RACP Scheme was akin to the Time Bound
Advancement (TBA) scale and as such the benefit accorded to
the respondent on 10.11.2005 was the first benefit given and,
thereafter, the second and third benefits were given on
13.10.2009 and 05.06.2010 and, thus, three benefits were
given to the respondent within 20 years of his service, whereas
according to the RACP Scheme, he would be entitled to only
two such benefits. It was contended that the subsequent
benefit given on 24.02.2015, by which the pay scale of the
respondent was raised, was a mistake of the Department and,
in any case, by aforesaid Order dated 24.02.2015 itself, it was
specified that “DDO concerned may be instructed to obtain an
undertaking from the employee while availing RACP benefits
that the excess payments if any detected in future will be
recovered from him or will be adjusted from the pensionary
benefits of the employees”.
Ms. Mohana, thus, submitted that the Office
Memorandum dated 23.02.2016 was perfectly justified as an
upgradation given earlier (whereby financial benefit was given
to the respondent) fulfilled the spirit of the RACP Scheme. It
was, thus, urged that the Order dated 07.08.2016, as well as
the consequent Order dated 29.08.2016, were fully justified
and in accordance with the Rules as well as the RACP Scheme
and that the benefit accorded to the respondent by the
Tribunal was not justified in law and the Order of the Tribunal
was liable to be quashed. In support of her submission, learned
Senior Counsel relied on the decisions of this Court rendered in
Union of India vs S. S. Ranade (1995) 4 SCC 462, State of
Rajasthan vs Fateh Chand Soni (1996) 1 SCC 562, Bharat
Sanchar Nigam Limited vs R. Santhakumari Velusamy
(2011) 9 SCC 510, Hukum Chand Gupta vs Director
General, Indian Council of Agricultural Research (2012) 12
SCC 666 and Secretary, Government (NCT of Delhi) vs
GradeI Dass Officers’ Association (2014) 13 SCC 296.
Per contra, Shri Jaideep Gupta, learned Senior Counsel for
the respondent herein (petitioner before the Tribunal), has
submitted that in 20 years of service of the respondent, the
respondent has been given only one upgradation/promotion on
05.06.2010. According to the learned Senior Counsel, the TBA
accorded on 10.11.2005 was not to be counted, as the same
was not under the RACP Scheme. The upgradation accorded
on 13.10.2009 was also not specifically for the respondent but
an upgradation in general, which could also not be said to be a
benefit under the RACP Scheme, and as such, the first benefit
given under the Scheme was only on 05.06.2010. It was urged
that in such view of the matter, the benefit given on
24.02.2015 was the second benefit under the RACP Scheme,
and was on completion of 20 years of service, which was
perfectly justified in law and the Tribunal has rightly allowed
the claim of the respondent.
8. Learned Counsel for the parties have relied on certain
other circulars and clarifications given by the Finance
Department of the Government of Orissa, which were not part
of the record, either before the Tribunal or the High Court.
Learned Counsel for the parties have submitted that since they
are Government documents, the same can be taken on record.
Learned Counsel for both the parties have also accepted the
fact that the High Court has not given any reason for
dismissing the Writ Petition and only quoted the paragraph 7 of
the Order of the Tribunal and dismissed the Writ Petition,
without giving any finding of its own.
9. In our considered view, the contentions, as raised by
the Counsel for the parties, ought to have been taken into
account, while passing the judgment in the Writ Petition, which
has not been done so in the present case. As such, we are of
the opinion that the matter should be remanded to the High
Court for deciding the Writ Petition afresh, in accordance with
law and after dealing with all the contentions raised by the
10. Accordingly, we allow these appeals and remand
the matter to the High Court to decide the Writ Petitions afresh,
after considering the various contentions raised by the parties.
The appellants herein are granted liberty to file additional
affidavits in the Writ Petitions within four weeks from the date
the Writ Petitions before the High Court stands revived. The
respondent shall have three weeks thereafter to file additional
counter affidavits. Rejoinders, if any, may be filed within two
weeks thereafter. The High Court shall, thereafter, make every
endeavour to decide the Writ Petitions as expeditiously as
possible, preferably within six months from the filing of the
affidavits as indicated above.
No orders as to costs.
(UDAY UMESH LALIT)
Dated: February 28, 2020.