Research › Search › Judgment

Orissa High Court · body

2026 DAILYLAW 27094 (ORI)

Rina Rath v. State of Odisha

2026-02-18

Biraja Prasanna Satapathy

body2026
JUDGMENT : BIRAJA PRASANNA SATAPATHY, J. 1. Heard Mr. P. Mohanty, learned counsel appearing on behalf of Ms. P. Rath, learned Senior Counsel for the petitioner and Mr. S.P. Das, learned Addl. Standing Counsel for the State. 2. The present Writ Petition has been filed inter alia challenging office order dated 07.06.2022, so issued by the Opp. Party No.1 under Annexure-5. Vide the said order, sanction of the benefit of TBA, ACP as well as RACP and MACP as well as increments were re-fixed and while re-fixing all those benefits, petitioner was held liable to pay back a sum of Rs.69,700/-. 3. Learned counsel for the petitioner contended that petitioner entered into service on 13.07.1983 as an Assistant Tourist Officer. While so continuing, petitioner was sanctioned with the benefit of TBA as well as ACP and RACP in due course of time. Not only that petitioner was also sanctioned with the increments and benefit of MACP. But just prior to her retirement, the impugned office order dated 07.06.2022 under Annexure-5 was passed, wherein benefit of TBA, ACP and RACP was re-fixed on the ground that while regularizing the leave of the petitioner, 2624 days of the leave was treated as Extraordinary Leave and accordingly the said period cannot be taken as service period of the petitioner, for the purpose of her entitlement to get the benefit of increment as well as benefit of TBA, ACP and RACP. 3. 1. Learned counsel for the petitioner though does not dispute that while regularizing the leave period, 2624 days was treated as Extraordinary Leave, but contended that after such regularization of the leave period, an entry was made in the service book so available at Page-16 under Annexure-1, that the leave period will count towards increment, under Rule-79(d) of the Odisha Service Code. 3. 2. It is contended that basing on such entry made in the service book, petitioner was extended with the benefit of increment, TBA, ACP and RACP all through on completion of the required years of service and by taking the initial date of joining of the petitioner as 13.07.1983. But just prior to her retirement on the ground that such Extraordinary Leave period will not count towards increment, benefits of TBA, ACP, RACP and increments were re-fixed and petitioner was held liable to refund a sum of Rs.69,700/- vide the impugned order dated 07.06.2022 under Annexure-5. 3. 3. But just prior to her retirement on the ground that such Extraordinary Leave period will not count towards increment, benefits of TBA, ACP, RACP and increments were re-fixed and petitioner was held liable to refund a sum of Rs.69,700/- vide the impugned order dated 07.06.2022 under Annexure-5. 3. 3. Learned counsel for the petitioner contended that since after regularization of the leave period, petitioner was held eligible to get the benefit of increment and other benefits, which were duly sanctioned, the same could not have been withdrawn with re-fixation of the benefit as well as increment vide the impugned order under Annexure-5. 3. 4. It is also contended that since petitioner was extended with the benefit and last such benefit was extended in the year 2016, no recovery can be made in view of the decision of the Hon’ble Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih, AIR 2015 SC 696 so followed in the case of Thomas Daniel Vs. State of Kerala & Others, 2022 Live Law (SC) 438. Hon’ble Apex Court in Para 18 of the judgment in the case of Rafiq Masih and in Para-18 of the judgment in the case of Thomas Daniel has held as follows: xxx xxx xxx “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. But that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover. xxxx xxxx xxxx xxxx “ 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 3. 5. A further contention is also made that benefit of RACP cannot be withdrawn by re-fixing the same vide the impugned order, in view of the provisions contained under Para-10 of the Resolution dated 06.02.2013 under Annexure-E to the counter affidavit. Para-10 of the resolution reads as follows:- “10. 5. A further contention is also made that benefit of RACP cannot be withdrawn by re-fixing the same vide the impugned order, in view of the provisions contained under Para-10 of the Resolution dated 06.02.2013 under Annexure-E to the counter affidavit. Para-10 of the resolution reads as follows:- “10. Benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial upgradation under the Scheme, which means the pay shall be raised by 3% of the total of pay in the Pay Band and the Grade Pay drawn before such upgradation. The employees of the cadre having promotional hierarchy will get the Grade Pay of the promotional post. The employees in isolated/ ex-cadre posts not having any promotional hierarchy will get the next higher Grade Pay as per the first schedule of ORSP Rules, 2008 with the interpolations, if any introduced subsequently. In case the new Grade Pay corresponds to a different Pay Band, the employee will get the Pay Band corresponding to the revised Grade Pay. There shall, however, be no further fixation of pay at the time of regular promotion.” 3. 6. In support of his contention, reliance was also placed to a decision of this Court in the case of State of Odisha and Another vs. Bihari Lal and Others , 2016 SCC OnLine Ori 333 . This Court in Para-14 and 16 of the said order has held as follows:- “ 14. The basic object of the RACP Scheme is to give incentive to the employees who have not been able to either promotion within certain years of service. The employees unless are given incentive by way of financial upgradation, the morale of the employees will be degraded and the employee will suffer from frustration. Of course, the promotional post if available, but the employee is not eligible to get the same, the financial upgradation is uncalled for. It is available from the materials on record that the earlier TBA principle was available and subsequently the ACPS Scheme was introduced. The ORSP Rules, 2008 was enacted with a view to revise the scale of pay in 2008 in terms of Pay band with Grade pay by converting the then scale of pay under the ORSP Rules, 1998. Earlier scale of pay was there, but under the ORSP Rules, 2008 the Pay band and Grade pay were introduced. The ORSP Rules, 2008 was enacted with a view to revise the scale of pay in 2008 in terms of Pay band with Grade pay by converting the then scale of pay under the ORSP Rules, 1998. Earlier scale of pay was there, but under the ORSP Rules, 2008 the Pay band and Grade pay were introduced. Thereafter on 6.2.2013 the RACP Scheme was introduced by revising the years to 10, 20 and 30. The said resolution is placed below:- “GOVERNMENT OF ODISHA FINANCE DEPARTMENT *** RESOLUTION No. 3560/F ______ Date: 06/02/2013 PCC(A)-49/2012 Sub:- Revised Assured Career Progression Scheme (RACPS) for the State Government Employees. The State Government considered the recommendations of the Fitment Committee and granted Assured Career Progression (ACP) to the State Government employees on compelition of 15th, 25th and 30th years of service akin to the Time Bound Advancement (TBA) provisions of the Orissa Orissa Revised Scales of Pay Rules, 1998. Accordingly, all State Government employees avail ACP in 3 stages i.e. 1st ACP on completion of 15 years of service, 2 nd ACP after 25 years of service and 3 rd ACP after 30 years of service in their original post/grade by addition of one increment @ 3% on the Basic Pay+Grade pay with next annual increment after a period of one year from the date of sanction of the ACP. 2. The Government of India in the meanwhile, had introduced Modified Assured Career Progression Scheme (MACPS) for the Central Government Civilian employees in supersession of the provisions of ACP scheme. Consequent upon implemention of the MACPS by the Government of India, various Service Associations of the State Government employees have come up with memoranda to consider implemention of the MACPS in respect of employees of the State Government. 3. Taking into account the uncertain promotional avenues and career stagnation of the State Government employees, Government after careful consideration have decided to implement a career advancement scheme to the known as REVISED ASSURED CAREER PROGRESSION SCHEME (RACPS). 4. The RACPS is to be effective from 01.01.2013. 5. The details of the RACP Scheme and conditions for grant of the financial upgradation under the Scheme are given in Annexure-1. By order of the Governer Sd/- Additional Secretary to Government” xxxx xxxxx xxxx xxxxx xxxx 16. 4. The RACPS is to be effective from 01.01.2013. 5. The details of the RACP Scheme and conditions for grant of the financial upgradation under the Scheme are given in Annexure-1. By order of the Governer Sd/- Additional Secretary to Government” xxxx xxxxx xxxx xxxxx xxxx 16. From the aforesaid analysis of the RACP of paragraph-10 it is clear that the pay will be fixed under the ORSP Rules, 2008, but the modalities for awarding RACP would 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 coresponding to upgraded Grade pay. Here the learned Addl. Government Advocate drew our attention to a clarification issued by the State Government in the Finance Department on 20.1.2014 at paragraph-12. According to said paragraph-12 the grade pay of promotional post which belongs to other cadre shall not be allowed under RACP Scheme even if the former post being only the feeder post of that promotional post and the RACP is confined to the cadre only. He further stated that it has been further clarified in paragraph-12 that such promotion shall be to an ex-cadre post and the period of service for RACP on that promotional post shall be recokoned afresh from the date of joining in that post. Such clarification is absolutely contrary to paragraph-10 of the RACP Scheme because paragraph-12 has denied benefit of RACPS to the employee entitled to promotional avenue under recruitment Rules, whereas paragraph-10 of RACPS allow same. If clarification is contrary to scheme, scheme has to be followed. Clarification has no any legislative value, whereas a scheme being in absence of rule has got binding effect and to be followed by all in the Administration. Clarification by State Government 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 scheme is clear that the RACP is available to an employee having promotional hierarchy. We are of the view that opp. Party no. Clarification by State Government 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 scheme is clear that the RACP is available to an employee having promotional hierarchy. We are of the view that opp. Party no. 1 as V.L.W. being not promoted to the post of G.P.E.O. and P.A. is entitled to RACP Scheme and as such ORSP Rules, 2008 will be applicable to them. The first schedule of the ORSP Rules, 2008 is depicted below:- ORISSA REVISED SCALES OF PAY RULES, 2008 FIRST SCHEDULE [See Rule-3] Existing Scale of pay under ORSP Rules, 1998 & corresponding revised scale of pay, 2008 in pay band with grade pay (Relevant portion). (In Rs.) 4. Learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Parties. Placing reliance on order dated 20.02.1997 under Annexure-C to the counter affidavit, learned Addl. Standing Counsel contended that while regularizing the leave period, a total of 2624 days was treated as Extraordinary Leave. 4. 1. While regularizing such leave period vide the aforesaid order dated 20.02.1997 under Annexure-C, it was clearly indicated that the leave period treated as Extraordinary Leave, will not count towards increment. Such an order was also passed with due concurrence of the Finance Department. 4. 2. It is contended that since while regularizing the leave of the petitioner, 2624 days was treated as Extraordinary Leave vide order dated 20.02.1997 under Annexure-C, and in the said order it was clearly held that such period will not count towards increments in terms of the provision contained under Rule-79(d) of the Odisha Service Code, petitioner in view of such order was not eligible to get the benefit of increment as due to her on dtd.01.07.1989 till 06.10.1996. 4.3 . It is also contended that order dated 20.02.1997 under Annexure-C was never challenged by the petitioner even though it was duly communicated. It is further contended that even though vide order dated 20.02.1997, it was clearly indicated that the Extraordinary Leave period will not count towards increment, but a wrong entry was made in the service book of the petitioner that such Extraordinary Leave period will also count towards increment. It is further contended that even though vide order dated 20.02.1997, it was clearly indicated that the Extraordinary Leave period will not count towards increment, but a wrong entry was made in the service book of the petitioner that such Extraordinary Leave period will also count towards increment. Basing on such wrong entry made in the Service Book and by taking the date of joining of the petitioner as 13.07.1983, petitioner was not only allowed the benefit of TBA, ACP and RACP as well as MACP, but also was allowed with the increments as due and admissible on such extension of the benefit. 4.4 . It is accordingly contended that since the leave period for the period 02.02.1988 to 02.02.1996, while being sanctioned, 2624 days of leave was treated as Extraordinary Leave, petitioner was not eligible to get the increments as due on 01.07.1989 till 06.10.1996, as well as the benefit of TBA, ACP and RACP from the date those benefits were sanctioned by taking the initial date of joining as 13.07.1983. Accordingly the same when came to the knowledge of the authority, the impugned order under Annexure-5 was passed on 07.06.2022. 4.5 . It is accordingly contended that on the face of the order passed under Annexure-C, which was never challenged, no illegality or irregularity can be found with the impugned order. It is also contended that as per Resolution dated 06.02.2013, benefit of RACP is in the nature of an increment and the submission that RACP is not in the shape of increment, is not acceptable. 4.6 . It is also contended that since petitioner was extended with the benefits wrongly, in view of the decision of the Hon’ble Apex Court in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others , (2012) 8 SCC 417 , the department is quite competent to recover the excess payment so received by the petitioner. 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner while in service, leave for the period from 02.02.1988 to 02.02.1996 was sanctioned vide order dated 20.02.1997 under Annexure-C to the counter affidavit. Vide the said order, while sanctioning the entire leave, 2624 days of leave was treated as Extraordinary Leave in terms of the provisions contained under Rule-159(2)(b) of the Odisha Service Code. 5. 1. Vide the said order, while sanctioning the entire leave, 2624 days of leave was treated as Extraordinary Leave in terms of the provisions contained under Rule-159(2)(b) of the Odisha Service Code. 5. 1. Vide the said order, it was also indicated that period of leave treated as Extraordinary Leave will not count towards increment and other service benefits as provided under Rule-79(d) of the Code. However, on the face of such order passed on 20.02.1997 under Annexure-C, a wrong entry was made in the service book of the petitioner by holding that Extraordinary Leave period will also count towards increment. Basing on such wrong entry made in the service book of the petitioner, petitioner was not only extended with the benefit of increment but also the benefit of TBA, ACP, RACP and by taking the date of initial joining of the petitioner as 13.07.1983. 5. 2. However, prior to her retirement on 30.06.2023, the impugned order under Annexure-5 was passed by re-fixing the increment as per order dated 20.02.1997 and while re-fixing the increment, benefit of TBA, RACP and ACP was also re-fixed and petitioner was held liable to pay back a sum of Rs.69,700/-. This Court taking into account the nature of order passed under Annexure-C and the provision contained under Rule-79(d) of the Code, is of the view that Extraordinary Leave period cannot be counted for the purpose of sanction of increment. 5. 3. This Court is also unable to accept the contention of the learned counsel for the petitioner that the benefit of RACP is not an increment in the eye of law. Since while sanctioning the leave for around 8 (eight) years, 2624 days was treated as Extraordinary Leave vide order dated 20.02.1997 under Annexure-C, which was never challenged by the petitioner at any point of time, the increment as due to the petitioner as on 01.07.1989 was made due as on 06.10.1996. But petitioner on the face of order dated 20.02.1997, was extended with the benefit of increment and consequential benefit sanctioned under TBA, ACP, RACP & MACP. 5. 4. But petitioner on the face of order dated 20.02.1997, was extended with the benefit of increment and consequential benefit sanctioned under TBA, ACP, RACP & MACP. 5. 4. Accordingly, this Court does not find any illegality or irregularity with the impugned order dated 07.06.2022, so issued under Annexure-5 and is not inclined to interfere with the same so far as extension of the benefit of increments and date of entitlement of the petitioner to get the benefit of TBA, ACP, RACP & MACP, so re-fixed is concerned. 5. 5. However, since petitioner without any fault of her own, was extended with the benefits till it was re-fixed vide the impugned order and petitioner continued with such benefit for more than a period of 5 (five) years, placing reliance on the decisions of the Hon’ble Apex Court in the case of Rafiq Masih so followed in the case of Thomas Daniel so cited (supra), this Court is of the view that no recovery can be made with regard to the excess payment drawn by the petitioner. 5. 6. Therefore, this Court while not interfering with the impugned order under Annexure-5 so far as date of entitlement of the petitioner to get the benefit of TBA, ACP, RACP and MACP and consequential increments, only held that no recovery can be made towards any excess payment drawn by the petitioner and quash the order so far as recovery is concerned. 6. The Writ Petition stands disposed of.