The main legal point established in the judgment is that the grant of TBA benefit to a government servant does not make him ineligible for the benefit of financial upgradation under the RACP scheme, and recovery of excess payment from a group-‘C’ employee may not be justified in the eye of the law.

JUDGMENT :

Sashikanta Mishra, J.

1. The short point that arises for consideration in the present writ petition is whether the benefit of Time Bound Scale (TBA) granted to a government servant makes him ineligible for the benefit of financial upgradation under the Revised Assured Career Progression (RACP) scheme.

2. The facts of the case are that the petitioner joined government service on 20.08.1983 as a Junior Clerk. He was granted the benefit of Time Bound Advancement Scale (TBA) as per Odisha Revised Scale of Pay (ORSP) Rules, 1998 w.e.f. 20.08.1998, since he had served in the entry grade for a period of more than 15 years. Subsequently, he was promoted as Senior Clerk and joined on 13.11.2013. He was further promoted to the post of Head clerk on 17.06.2006 in the office of opposite party no.4. Pursuant to Finance Department Resolution No. 3560 dated 06.02.2013, the petitioner was allowed 3rd upgradation benefit (RACP) w.e.f. 19.08.2013 and accordingly his pay was fixed vide order dated 31.12.2015 passed by opposite party no.3. To his surprise however, the petitioner was served with a copy of the order issued by the opposite party no.4 on 30.11.2017 intimating that a decision had been taken to recover an amount of Rs.55,690/- from him on the ground of excess payment due to wrong fixation of pay during grant of 3rd RACP. The said order was passed in reference to order dated 31.10.2017 of opposite party no.3, whereby the order granting the 3rd RACP benefit to the petitioner had been superseded on the ground of AG audit objection. According to the petitioner, the provisions of the RACP Scheme, which disentitle a Government Servant from its benefit do not at all apply to the petitioner. It is further stated that financial upgradation received in the shape of TBA/Assured Career Progression (ACP) prior to introduction of the RACP scheme does not stand in the way of granting the benefit under the RACP. Since the petitioner had completed 30 years of service w.e.f. 08.08.2013, he was rightly granted the benefit of RACP on the basis of recommendation of a duly constituted screening committee. It is the further case of the petitioner that even otherwise the recovery of the so-called excess payment is entirely illegal since it amounts to a penalty and the petitioner cannot be blamed in any manner for such payment. On the above facts the petitioner originally approached the erstwhile Odisha Administrative Tribunal in O.A. No. 2089 of 2017 with prayer to quash the orders dated 30.11.2017, 31.10.2017 and 27.10.2017 and to fix his pay appropriately in terms of order dated 31.12.2015. The said O.A. has since been transferred to this Court and registered as the present writ application.

3. A counter has been filed on behalf of the opposite parties basically taking the stand that as per audit observation, the petitioner had already availed three financial upgradations in the following manner : (i) first financial upgradation availed as TBA on 20.08.1998 (ii) second upgradation availed as promotion as Senior Clerk on 13.11.2003 and (iii) third upgradation availed as promotion as Head Clerk on 17.06.2006. Therefore, he could not have been granted the benefit of 3rd financial upgradation w.e.f 19.08.2013. It is further stated that the petitioner is only entitled to the next grade pay i.e., Rs.4,600/- w.e.f. 20.08.2013 but not increment of 3% of pay + grade pay on the existing pay and higher rate of grade pay Rs.4,600/-. On such ground, the impugned orders dated 31.10.2017 in superseding the earlier order granting the benefit of RACP and order dated 30.11.2017 directing recovery of the excess payment made to him were sought to be justified accordingly.

4. Heard Mr. S.N. Patnaik, learned counsel for the petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State.

5. Referring to the Finance Department resolution dated 06.02.2013, Mr. Patnaik submits that firstly, the TBA provision of ORSP Rules, 1998 has been held to be akin to the