IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26696 of 2023 Jayakrushna Barik …. Petitioner Mr. B.S. Tripathy-1, Advocate along with Mr. A. Sahoo, Adv. -versus- State of Odisha & Ors. …. Opposite Parties Mr. P.K. Panda. Das, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 11.03.2026 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia with the following prayer:- “On the facts and in the circumstances stated above, your petitioner, therefore, prays that this Hon'ble Court be pleased to; (1) hold and declare that the impugned portion of the direction of OP No.1 that the pensionary entitlement of the petitioner would be as per presumptive pay with accrual of annual increments as per rule based on order of reversion as reflected in Annexure-16 and 17 is bad and illegal being contrary to Rule-34, 47 of Odisha Service Code read with Rule 2(e) (p), Rule 37(c), Rule 40 and Rule 47(2) the OCS(Pension) Rules, 1992 and thereby quash the said impugned portion of direction of the OP No.1 in Annexure-16 and 17 and thereby; p. 2 p. 2 (ii) direct the OPs to forthwith calculate and release the financial benefits in favour of the petitioner like increments, fixation of pay, financial up gradation (1st, 2nd and 3rd MACPs), leave salary, gratuity, promotion to the rank of OTAS in Group-B Cadre with corresponding scale of pay matrix in Level-10 of ORSP Rules, 2017 during the year 2020 and final pension; (iii) pass such other order(s) as deemed fit and proper in the bonafide interest of justice and fair play; And for which act of your kindness, the petitioner shall as in duty bound, ever pray” 4. It is contended that Petitioner while continuing in service as a Senior Clerk, vide office order dtd.30.10.2006 under Annexure-4, was given the benefit of promotion to the rank of Asst. Commercial Tax Officer and was posted to Cuttack-1 Range. 4.1. It is further contended that on his joining in the promotional post, Petitioner vide office order dtd.30.11.2009 under Annexure-7 was extended with the benefit of increment, as due and admissible under ORSP Rules, 2008 in the scale of pay of Rs.9,300/- to Rs.34,800/-. However, while so continuing in the promotional post, Petitioner when was illegally reverted to the post of Jr. Clerk vide order dtd.21.12.2019, Petitioner challenging the same approached the Tribunal by filing O.A No.3325(C) of 2009. 4.2. The Tribunal when did not pass any interim order protecting the interest of the Petitioner with regard to his continuance in the promotional post, Petitioner challenging such order of the Tribunal, approached this p. 3 p. 3 Court by filing W.P.(C) No.6 of 2010. This Court vide order dtd.05.01.2010 in Misc. Case No.33 of 2010 passed an interim order by staying the operation of the order dtd.21.12.2009. Subsequently, the Writ Petition was disposed of vide order dtd.23.03.2010 under Annexure-9, with a direction on the Tribunal to dispose of the matter by fixing a time limit and allowed the interim order passed on 05.01.2010 to continue. 4.3. It is contended that the Original Application filed before the Tribunal was never disposed of in terms of order dtd.23.03.2010. However, in terms of the interim order passed by this Court on 05.01.2010, Petitioner was allowed to continue in his promotional post and such position continued till he attained the age of superannuation on 31.05.2022, as reflected in Annexure-11. 4.4. It is contended that since Petitioner in terms of the interim order passed by this Court on 05.01.2010 continued in the promotional post till he attained the age of superannuation on 31.05.2022, this Court while disposing the matter after its transfer from the Tribunal in WPC(OAC) No.3325 of 2009, passed the following order on 27.06.2022 under Annexure-12:- “1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel for the Petitioner and learned counsel for the Opposite Parties. 3. This Writ Petition has been filed by the Petitioner challenging the order dated 21.12.2009 passed by the p. 4 p. 4 Commissioner of Commercial Taxes, Orissa, Cuttack under Annexure-4. 4. It is submitted that by virtue of the interim order passed by the learned Tribunal, the Petitioner continued in his promotional post and in the meantime he has retired from service on 31.05.2022. 5. It is submitted that in spite of such continuance in the promotional post, some financial benefits as due and admissible has not been extended in his favour. 6. Considering the fact that the Petitioner has retired in the meantime while continuing in the promotional post, nothing remains to be decided in the Writ Petition. The petitioner is given liberty to make appropriate application with regard to non-release of any financial benefit, if any. 7. The Writ Petition is disposed of with the aforesaid liberty.” 4.5. Learned Sr. counsel appearing for the Petitioner contended that, pursuant to the order passed by this Court, Petitioner when raised his claim to get the financial benefits as due and admissible to him in the promotional post by making a detailed representation under Annexure-14 before Opposite Party No.2, without proper appreciation of the order passed by this Court under Annexure-12, claim made by the Petitioner in his representation under Annexure-14, was rejected vide the impugned order dtd.02.05.2023 under Annexures-16 and consequential order dtd.23.05.2023 under Annexure-17. Vide order dtd.02.05.2023, it was held that pensionary benefits of the Petitioner be calculated as per the presumptive pay with accrual of annual increments as per the Rules on the basis of the reversion order dtd.21.12.2009. p. 5 p. 5 4.6. While assailing that part of the order dtd.02.05.2023 under Annexure-16 and consequential order passed on 23.05.2023 under Annexure- 17, learned Senior Counsel contended that since by virtue of the interim order passed by this Court on 05.01.2010 in W.P.(C) No.6 of 2010, Petitioner continued in the promotional post, till he attained the age of superannuation on 31.05.2022, Petitioner is eligible and entitled to get the benefit of increment all through and he is also entitled to get the benefit of pension and pensioanry benefits accordingly. But Opposite Party Nos.1 and 2 held the Petitioner eligible to get the benefit of presumptive pay with annual increment, taking into account the order of reversion passed on 21.12.2009. 4.7. It is contended that since Petitioner continued in the promotional post till he attained the age of superannuation, which is not disputed, and the order of reversion so passed on 21.12.2009 under Annexure-8 was never acted upon, till Petitioner attained the age of superannuation, direction contained in the impugned order to pay the pensionary entitlement of the Petitioner as per the presumptive pay with accrual of annual increments on the basis of reversion order dtd.21.12.2009 is not sustainable in the eye of law. 4.8. It is accordingly contended that such part of the order contained in the order dtd.02.05.2023 and consequential order dtd.23.05.2023 under Annexures-16 p. 6 p. 6 and 17 requires interference of this Court, with a direction to extend the benefit of increments and other financial benefits as due and admissible in the promotional post of ACTO, with extension of all retiral dues. 4.9. It is further contended that even though Petitioner has retired since 31.05.2022, but till date he is not getting his retiral benefits and other pensinary benefits as due and admissible save and except the provisional pension. 4.10. It is accordingly contended that with quashing of the impugned order so far as it relates to calculating the pensionary entitlement of the Petitioner as per the presumptive pay with accrual of annual increment on the basis of the order of revision, Opposite Parties be directed to release the pension and pensionary benefits by extending the benefit of increment and other financial benefits as due and admissible to the promotional post. 5. Learned Addl. Standing Counsel on the other hand basing on the stand taken in the counter affidavit made his submission in support of the impugned order. 5.1. It is contended that since the order of reversion so passed on 21.12.2009 under Annexure-1, was never interfered with by this Court while disposing WPC(OAC) No.3325 of 2009 under Annexure-12, Petitioner is not eligible and entitled to get the benefit of the pay and p. 7 p. 7 increment as due and admissible to the promotional post and instead he is eligible and entitled to get the said benefit in the post to which he was reverted with payment of presumptive pay in terms of the provisions contained under Rule-38 of the Orissa Service Code and the increments. It is accordingly contended that no illegality or irregularity can be found with the impugned order. It is also contended that due to pendency of the Writ Petition, Petitioner has not been extended with the retiral benefits with due fixation of the pay and the increment as per the order of reversion. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner while continuing as a Senior Clerk, he was promoted to the rank of ACTO vide order dtd.30.10.2006 under Annexure-4. Not only Petitioner joined in the promotional post, but also he was sanctioned with the pay scale and the increment in the promotional post as found from the order dtd.30.11.2009 under Annexure-7. Thereafter when vide order dtd.21.12.2009 under Annexure-8 Petitioner was reverted to the post of Junior Clerk, which is admittedly a lower post, the same was assailed by the Petitioner before the Tribunal by filing O.A No.3325(C) of 2009. 6.1. The Tribunal when did not protect the interest of the Petitioner and refused to pass any interim order, p. 8 p. 8 Petitioner challenging such order of the Tribunal approached this Court by filing W.P.(C) No.6 of 2010. As found from order dtd.23.03.2010 under Annexure-9, this Court passed an interim order on 05.01.2010 by staying the operation of the order of reversion so passed on 21.12.2009. Even though this Court while disposing the matter vide order dtd.23.03.2010, directed for disposal of the matter by the Tribunal by the end of June, 2010, but the same was never complied with and the Original Application remained pending. 6.2. Petitioner however continued in the promotional post in terms of order dtd.05.01.2010 till the matter was ultimately disposed of by this Court vide order dtd.27.06.2022 under Annexure-12. Since by virtue of the interim order dtd.05.01.2010, Petitioner continued in the promotional post, till he attained the age of superannuation on 31.05.2022, this Court disposed of WPC(OAC) No.3325 of 2009 by holding that Petitioner is entitled to get the financial benefit as due and admissible. The aforesaid order passed by this Court was never assailed by the State. 6.3. But while complying the order, by holding that Petitioner has been reverted vide order dtd.21.12.2009, vide the impugned order dtd.02.05.2023 under Annexure- 16 and consequential order dtd.23.05.2023 under Annexure-17, it was held that Petitioner is entitled to get presumptive pay with accrual of annual increment as per p. 9 p. 9 the Rules on the basis of the reversion order dtd.21.12.2009. 6.4. This Court taking into account the fact that the order of reversion was never acted upon and Petitioner continued in the promotional post in terms of order dtd.21.12.2009, till he attained the age of superannuation on 31.05.2002, is of the view that Petitioner is eligible and entitled to get the benefit of increment and other financial benefits as due and admissible in the promotional post, till he attained the age of superannuation and so also the retiral benefits accordingly. 6.5. Therefore, this Court while quashing the direction so contained in the impugned order dtd.02.05.2023 under Annexure-16 and consequential order dtd.23.05.2023 under Annexure-17, to extend presumptive pay and the increments on the basis of reversion order dtd.21.12.2009, directs Opposite Party Nos.1 and 2, to allow the benefit of increment and other financial benefits as due and admissible to the Petitioner in the promotional post, till he attained the age of superannuation and release the pension and pensionary benefits accordingly. This Court directs Opposite Party Nos.1 and 2 to complete the entire exercise within a period of three (3) months from the date of receipt of this order. p. 10 p. 10 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat