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2009 DIGILAW 471 (ORI)

Jaladhar Pradhan v. State of Orissa

2009-06-30

H.P.DAS

body2009
ORDER H.P. DAS, VICE CHAIRMAN — The applicant Jaladhar Prad¬han, who retired on superannuation on 31.10.2001 from OFS Class-I, while this application in 2004, is seeking the quashing of orders as at Annexure-6 and 7 and for a direction upon the re¬spondents to treatment him as to have crossed Efficiency Bar in the scale applicable as on 1.6.1989 in the ORSP Rules 1989 and for a further direction to allow him all consequential benefits leading to refixation of his pay and release of revised retrial dues. 2. The facts of the case, as brought out by the applicant, are that the applicant on promotion to the post of Assistant Conservator of Forests in 1980 came to enjoy the pay scale Rs.525-30-555-35-590-40-670-EB-45-850-EB-50-1300/- with effect from 1.1.1981. Two Efficiency Bars coming after the stage of Rs.670/- and Rs.850/- were duly crossed by him with effect from 1.1.1981 and 1.6.1989 respectively. The pay of the applicant was fixed at Rs.900/- on crossing the second Efficiency Bar. The scale of pay enjoyed by the applicant under the ORSP Rules, 1981 was revised by replacement with new scale Rs.1350-55-1735-EB-60-2095-70-2375-EB-75-2975/-. In the ORSP Rules, 1985 Rule 12(1) made a provision that where there were two Efficiency Bars in the existing scale and also two Efficiency Bars in the revised scale and the officer, who had crossed both the Efficiency Bars in the existing scale would not be required to cross Efficiency Bars again in the revised scale. Accordingly the applicant was deemed to have crossed two Efficiency Bars in the new scale also. ORSP Rules, 1989 further revised the scale to Rs.2000-60-2300-EB-75-3200-100-3500/-. These rules also made a provision under Rule 10(1) to the effect that where there were two Efficiency Bars in the existing scale, but only one in the revised scale, an officer, who had crossed both the Efficiency Bars in the existing scale would be deemed to have crossed the only Efficiency Bar in the revised scale. 3. The respondents on the plea that the deeming provision under the ORSP Rules 1985 and 1989 cannot be taken advantage of by the applicant denied him the benefit of revision of pay under the ORSP Rules 1989 and subjected him to the rigours of Efficiency Bar crossing once more in the new scale under the ORSP Rules 1989 and detained him at that stage. The respondents in their counter have explained their position in paragraphs 3 and 4 of their counter. Paragraphs 3 and 4 read as follows : “3. That as regards to averment in para 6.12 as stated that since Sri Pradhan has already availed the deemed to have crossed E.B. formula in 1985 revised scale of pay Rules, there is no scope to avail the same formula in another revised scale of pay, i.e. in O.R.S.P. Rules, 1989. Therefore, the F & E Deptt. in their order No.IIF(A)-26/02-12928/F & E dt.26.8.2004 have rightly ordered that the applicant will have to again cross the Test E.B. at the stage of Rs.2600/-. 4. The averments by the applicant in the para 6.13 is not correct. Actually, the date of crossing of E.B. at the stage of Rs.850/- in the scale of Pay of Rs.525-30-555-35-590-40-670-EB-45-850-EB-50-1300/- in favour of Sri Pradhan was due with effect from 1.6.84. But due to entry of “adverse” remarks in most of the CCRs of Sri Pradhan has been allowed to Cross E.B. with effect from 1.6.89 instead of allowing him from 1.6.84. This is after 5 years of his actual date. Hence, the petitioner’s averments in this paragraph is not based on facts & devoid of merits.” 4. For a better appreciation of the gamut of the issues involved it would be proper to see the three scales together. (a) 525-30-555-35-590-40-670-EB-45-850-EB-50-1300/- (b) 1350-55-1735-EB-60-2095-70-2375-EB-75-2975/- (c) 2000-60-2300-EB-75-3200-100-3500/- It would be seen from the above that in scale (a) the appli¬cant had crossed both the Efficiency Bars and his pay had been fixed in scale (b) without requiring him to cross any Efficiency bar in application of Rule 12(1) of the ORSP Rules, 1985. But when scale (b) was again replaced by scale (c) the respondents apparently have taken the plea that the deeming provision would not apply and the applicant would have to cross the Efficiency Bar yet again in scale (c). The grievance of the applicant arises out of this interpretation of the ORSP Rules. 5. The issue before the Tribunal is as to whether the deeming provision can be extended to cover all the subsequent revisions of the earlier scales in the which all the Efficiency Bars were crossed. In other words whether after crossing the Efficiency Bars in one basic scale, the applicant would be re¬quired to cross Efficiency Bars in the replacement scales. The issue before the Tribunal is as to whether the deeming provision can be extended to cover all the subsequent revisions of the earlier scales in the which all the Efficiency Bars were crossed. In other words whether after crossing the Efficiency Bars in one basic scale, the applicant would be re¬quired to cross Efficiency Bars in the replacement scales. A plain reading of the deeming provisions under the ORSP Rules, 1985 and 1989 makes it quite clear that if Efficiency Bars had already been crossed in the existing scale, then no further crossing of Efficiency Bar in the replacement scale would be required. Now the applicant had actually crossed Efficiency Bars in 1981 scale. For that reason he was deemed to have crossed Efficiency Bar in 1985 scale (scale (b)). By applying Rule 10(1) of the ORSP Rules 1989 whether the applicant can claim to have crossed the single required Efficiency Bar in the new scale. A plain reading of the Rule makes it absolutely clear that the deeming provision was introduced in the ORSP Rules in considera¬tion of the fact that the scales were being progressively intro¬duced as the replacement scales. Therefore, if two Efficiency Bars were crossed in 1981 scale, then applying the deeming provi¬sions under the ORSP Rules, 1985 and 1989 it should leave no one in doubt that no further crossing of Efficiency Bar would be necessary. The learned counsel for the Government argues that each ORSP Rule has to be read separately and the ORSP Rules 1989 categorically provided that in order to be exempted from crossing Efficiency Bar in the new scale a person should have crossed Efficiency Bars in the previous scale i.e. scale (b) under the ORSP Rules, 1985. He emphasizes that exemption is dependent on actual crossing of Efficiency Bar and not the notional crossing of efficiency Bar that the deeming provision provides. The learned counsel for the applicant submits that theoretically in the event of 1981 scale not having been replaced, the applicant would not have required to cross any other Efficiency Bar as he had crossed two Efficiency Bars required to be crossed in 1981 scale. The learned counsel for the applicant submits that theoretically in the event of 1981 scale not having been replaced, the applicant would not have required to cross any other Efficiency Bar as he had crossed two Efficiency Bars required to be crossed in 1981 scale. In other words he argues that if further crossing of Efficiency Bar is insisted upon, then the scale would not be called a replacement scale and effectively the applicant would be required to cross Efficiency Bar thrice (twice in scale (a) and once in scale (c)). That according to him would be anomalous as the scales contemplated earlier two Efficiency Bars and later one Efficiency Bar in replacement. He clarifies that the provisions of Rule 10(1) under the ORSP Rules 1989 would apply strictly to those who are borne on the scale and not to those who have al¬ready tested for efficiency in the earliest scale. Citing the action taken by the respondents until Annexure-10 orders were issued by the Principal C.C.F. i.e. respondent No.2 he submits that the respondents had correctly fixed his pay in pursuance of the ORSP Rules 1985 and 1989 which was sought to be withdrawn on the advice of the Chief Accounts Officer of the office of the Principal CCF. 6. I find from the counter of respondent No.2 that he has relied on a clarification received from the Government in Forest and Environment Department as far as applicant is concerned, (Annexure-C). I find therefrom that the Government have decided to hold up the applicant at the stage of crossing Efficiency Bar as on 1.6.1989. As his CCRs were adverse he was not allowed to cross Efficiency Bar in scale of Rs.2000-60-2300-EB-75-3200-100-3500/-. The fact that the applicant was allowed to cross second Efficiency Bar in the first scale five years latter would be of no significance as this can only be construed as an administra¬tive delay and as would be evident from Annexure-B to the counter of respondent No.2 that the crossing of Efficiency Bar became effective from 1.6.1984 in the pre-revised scale. Thus, it will have to be concluded that both the Efficiency Bars were crossed in the first scale (scale (a)). Evidently the respondents have not gone by Rule 10(1) of the ORSP Rules 1989. It would not be correct on the part of the respondents to read each ORSP Rules independently. Thus, it will have to be concluded that both the Efficiency Bars were crossed in the first scale (scale (a)). Evidently the respondents have not gone by Rule 10(1) of the ORSP Rules 1989. It would not be correct on the part of the respondents to read each ORSP Rules independently. As a matter of fact, the concept of replacement scale is a great significant here. When a new scale came in re¬placement of old scale and the Rules provide that on having crossed the required two Efficiency Bars in the previous scale, an officer would not be required to cross single Efficiency Bar in the new scale, what could be the justification in insisting on actual crossing of Efficiency Bar ignoring the benefit of deemed crossing that was applicable in the present case ? Where scales are in replacement of each other, I do not think it would be appropriate to require a person to cross Efficiency Bar in the new scale, if he had crossed all the Efficiency Bars required in the initial scale which was being replaced. 7. Thus I allow the application and quash Annexures-6 and 7 with a direction upon the respondents not to insist on further crossing of Efficiency Bar in the applicable scale under the ORSP Rules, 1989 and to place the applicant in the new scale under the ORSP Rules, 1989 at an appropriate stage and allow him to draw the benefit of increments thereafter. Adverse entries in the CCR which have been taken as the basis for detaining the applicant at the pre-Efficiency Bar stage in the new scale under the ORSP Rules 1989 would be of no avail as the applicant had already crossed the required Efficiency Bars in the first scale under the ORSP Rules, 1981 and had been granted the benefit of deemed crossing under the ORSP Rules 1985. His placement in the new scale under the ORSP Rules, 1989 is only relevant for the purpose of fixing his pay in the replacement scale without the obstruc¬tion of Efficiency Bar. The consequential benefits be calculated including pensionary benefits on the basis of revised pay arrived at on the basis of these orders and the benefits be disbursed to the applicant within a period of six months from the date of receipt of a copy of these orders. Disposed of with the above orders. Application allowed.