Suresh Chandra Sarangi vs State Of Odisha And Others

G. Satapathy, J.

The very specific and limited grievance of the petitioner by way of this WPC(OAC) No.1208 of 2014 is for grant of 2nd and 3rd financial up-gradation to him, when he completed 20 years or 30 years of service.

The petitioner entered into service as a Junior Clerk on 02.02.1976 and was promoted to the post of Senior Clerk in the year 1991 and continued as such, till he was kept in charge of Head Clerk w.e.f. 01.02.2014 till his retirement on 30.04.2014. The Government of Odisha in Finance Department by way of Resolution dated 06.02.2013 introduced Revised Assured Carrier Progression Scheme (RACPS), whereby provision has been made for grant of three financial up-gradations to the State Government employees on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion, but the applicant having completed 30 years of service was promoted only once in his career and he, thereby, is entitled to 2nd and 3rd financial up-gradation in terms of RACPS. Accordingly, the applicant and some other similarly situated employees made a representation to the District Education Officer (DEO), Khordha for consideration of their case for grant of RACPS and, accordingly, the DEO while forwarding their representation to the Director, Secondary Education, Odisha, Bhubaneswar, had made quite favourable observation by stating inter alia that passing of Accounts Examination has got no nexus with extending the benefit under RACPS. In response to the above communication, the DEO was asked to refer to necessary clarifications issued in this regard including the Financial Department Resolution Memo No.1738/F dated 20.01.2014, which says that if passing of Departmental Examination is a criteria for promotion in the cadre, it shall be considered while extending RACP Scheme, but the applicant asserts that since he belongs to Secondary wing of Education Department, passing of Accounts Examination is not a pre-requisite condition for promotion.

In response to the claim of the applicant, O.P.No.3-DEO, Khordha only has filed counter reply by stating inter alia that the Finance Department vide Memo No.1738/F dated 20.01.2014, has issued clarification regarding applicability of passing of Departmental Examination for granting RACPS to the State Government employees and the criteria for Assured Carrier Progression (ACP) under Orissa Revised Scale of Pay Rules, 2008 (ORSP) is totally different from the criteria for RACPS.

In the course of hearing of the WPC(OAC), Mr. B. Dash, learned counsel for the petitioner by relying upon the order passed by this Court in WPC(OAC) No.3008 of 2013 and the decision in Rajendra Prasad Singh vs. State of Orissa and others; 93 (2002) CLT 346, has submitted that although the Finance Department vide Resolution under Annexure-6, has clarified that passing of Departmental Examination is a criteria for grant of RACPS to the employee, but passing of such examination in terms of Odisha Ministerial Services (OMS) rule is not applicable in the case of petitioner and this Court has made it clear by the decision in the Rajendra Prasad Singh (supra). It is further submitted that the case of the petitioner is also covered by the order dated 03.11.2022 passed by a Co-ordinate Bench of this Court in WPC(OAC) No.3008 of 2013 and, therefore, the petitioner’s case deserves acceptance.

On the other hand, Mr. Y.S.P. Babu, learned AGA, however, has seriously contended that passing of Departmental Examination being the pre-requisite condition, the petitioner’s case for 2nd and 3rd financial up-gradation cannot be considered as he has not cleared the Departmental Examination.

After having considered the rival submissions, this Court considers it necessary to extract the claim of the petitioner made in Paragraph-6. 7 as under:

“That the Director, Secondary Education, Odisha vide his office letter No.30531 dt.20.07.2013 (while giving answer to the query) observed that in view of Para-6 of Finance Department Order No.7299 dt.25.02.1999, passing of departmental examination is not mandatory to consider granting benefits of ACP Scheme because the intention behind it, is to extend the promotional benefits, but not promotion.”

In response to the aforesaid claim made in Paragraph-6.7, O.P.No.3 has never denied such claim of the petitioner, which inter alia goes to suggest that passing the Departmental Examination is not mandatory to consider grant of benefits of ACP Scheme, which is clarified by the Office of the Director, Secondary Education, Odisha at Annexure-

Besides, O.P.No.3 in order to negate the claim of the petitioner heavily relies upon in his counter, the clarification at Serial No.2 to the points of doubt issued by the Finance Department in Annexure-6, which is extracted as under:

Sl. No.

Points of doubt

Clarification

Whether an employee who has not passed Departmental Examination, shall be considered for availing benefit under RACP Scheme it being a criterion for promotion?

If passing of Departmental Examination is a criterion for promotion in the cadre, it shall be considered while extending RACP Scheme. If one has not passed the Departmental Examination, he/she shall not be eligible for benefit under RACP Scheme.

A careful consideration of the undisputed claim of the petitioner would go to reveal that he was promoted to the post of Senior Clerk in the year 1991 even without clearing the Departmental Examination, which itself is indicative of the fact that passing of Departmental Examination is not the criteria for promotion to the next cadre. Be that as it may, in Rajendra Prasad Singh (supra), after making a thread bare discussions by referring to the precedent in the matter, this Court has held at Paragraphs-15 and 18 as under:

“15. The petitioner was promoted to the post of U.D.C. in the year 1980 and to the post of Head Clerk in the year 1986. Both the posts were permissible under the prescribed yardstick. In view of the fact that neither in 1980 nor in 1986, there was any Rule or Notification laying down a stipulation to pass Accounts Examination as a condition precedent, I have no hesitation to hold that the promotion of the petitioner was not bad nor contrary to Rule.

Once it is held that passing of Accounts Examination was not required in the year 1980 and 1986, the reasons for not according approval to the petitioner's promotions totally fails. Even otherwise, admittedly, promotion of number of persons similarly placed as the petitioner, promoted prior to 1974, have been approved by the Government. Thus, there is no rhyme or reason to discriminate the petitioner. I, therefore, have no hesitation to set aside the impugned order Annexue-7 and direct the Authorities to accord approval to the petitioner's promotion to the post of U.D.C. and Head Clerk in consonance with the proposal submitted by the College.”

Similarly, this Court by an order passed on 3. 11.2022 in WPC(OAC) No.3008 of 2013, has also extended the relief of promotion to the petitioner therein notionally, whose promotion was reversed on account of his failure to clear the Accounts Examination as required under OMS rules, no matter subsequent clear of Accounts Examination by the said petitioner was also taken into consideration.

In view of the discussion made hereinabove and taking into consideration the claim of the petitioner with respect to instruction issued by Director, Secondary Education of Odisha, at Annexure-3 and the claim made by the petitioner at Paragraph-6.11 of the OAC, which are not being denied or disputed by O.P.No.3 in his counter and keeping in view the fact that the petitioner was allowed to be promoted to the cadre of Senior Clerk in the year 1991 without him having cleared the Departmental Examination and following the dictum of this Court in Rajendra Prasad Singh (supra), this Court has no hesitation to hold that passing of the Departmental Examination is not sine qua non for grant of financial up-gradation. Hence, the petitioner is entitled to the 2nd and 3rd financial up-gradation subject to his having completed 20 and 30 years of service without any promotion, to be determined by the concerned Department.

Hence, the WPC(OAC) stands allowed to the extent indicated above. The petitioner’s entitlement to 2nd and 3rd financial up-gradation in terms of the above order accordingly be worked out and, consequently, his pension be revised within a period of 12 weeks from the date of receipt/ communication/ production of copy of this order.

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