The State Of Odisha vs Satya Narayan Behura on 28 February, 2020


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.

Leave granted.

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
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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.

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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
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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
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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
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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
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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
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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

parties.

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
10

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.

………………………………..J
(UDAY UMESH LALIT)

………………………………..J
(VINEET SARAN)

New Delhi
Dated: February 28, 2020.



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