Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11142 of 2016 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Bhagban Prasad Pattajoshi …. Petitioner(s) -versus- State of Odisha and others …. Opposite Party (s) Advocates appeared in the case throughHybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr.Animesh Mohanty, Adv. Mr.Sonak Mishra, ASC Mr.BikramPratap Das, Adv. for O.P.4 CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-01.10.2024 DATE OF JUDGMENT:-17.12.2024 Dr. S.K. Panigrahi, J. 1. In the present Writ Petition, the petitioner seeks a directive from thisCourt to quash the order dated 28.05.2016 passed by Opposite Party No. 1, wherein his request for a higher pay scale was denied. The petitioner further prays for the grant of the pay scale of PB-3 (Rs.15600- Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 39100) with Grade Pay of Rs.6600/- from the date of his appointment as Senior Law Officer, i.e., 09.10.2013. I. FACTUAL MATRIX OF THE CASE:
Facts
2. The brief facts of the caseare asfollows: (i) The petitioner was initially appointed as an Assistant Law Officer in the State Pollution Control Board (“SPCB”) on 30.05.1996. He was promoted to the post of Law Officer on 12.03.2003, and further promoted to the position of Senior Law Officeron 09.10.2013. (ii) In response to a government letter seeking proposals to strengthen the SPCB, including the creation of new positions, upgrading existing ones, and filling vacant posts, a proposal was submitted. The proposal recommended the creation of a Senior Law Officer (Level-II) position, with a grade equivalent to Under Secretary, as well as the addition of a Data Entry Operator role. (iii) The proposal was discussed in the 98th meeting of the SPCB, which resolved to establish a committee to review the manpower requirements of the Board and make recommendations accordingly. (iv) A committee chaired by the Commissioner-cum-Secretary, Steel and Mines Department (referred to as the “Dalwai Committee”) was formed to assess the manpower requirements and to recommend the creation of additional posts. The Dalwai Committee, in its report, recommended the creation of new posts, including the Senior Law Officer, and maintaining parity with corresponding government posts. (v) After approving the Dalwai Committee’s report, the SPCB submitted a revised proposal to Opposite Party No. 1. This proposal recommended Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 the creation of the Senior Law Officer position in Pay Band-3 (PB-3) with a Grade Pay of Rs. 5400/-, along with technical posts such as Deputy Environmental Scientist (DES) and Deputy Environmental Engineer (DEE), which were also to be placed in PB-3 with the same Grade Pay. (vi) The Opposite Party No. 1 approved the creation of the technical posts (DES and DEE) in PB-3 with Grade Pay Rs. 5400/-, but retained PB-2 for the Senior Law Officer. (vii) Subsequently, the SPCB recommended an amendment to place the Senior Law Officerin PB-3 with Grade Pay Rs. 5400/- to align the post with the nature and responsibilities of the position. This recommendation was in response to a query from Opposite Party No. 1, seeking clarification regarding the revision of the pay band for the Senior Law Officer. (viii) According to the Recruitment and Conditions of Service for SPCB employees (Regulations of 2011), the posts of DES, DEE, and Senior Law Officer were designated as promotional posts within the Board. (ix) Despite these recommendations, Opposite Party No. 1, by a decision dated 28.05.2016/ rejected the petitioner’s claim for the revision of the pay band from PB-2 to PB-3. The rejection was based on the assertion that the Senior Law Officer was a promotional post, and therefore, the petitioner’s claim for a higher pay scale was not justified. (x) Aggrieved by the rejection of his claim, the petitioner filed the present writ petition, seeking a direction from the Court to quash the order dated 28.05.2016 passed by Opposite Party No. 1 and to grant him the Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 pay scale of PB-3 (Rs. 15600-39100) with Grade Pay of Rs. 6600/- from the date of his appointment to the Senior Law Officer (i.e., 09.10.2013). The petitioner contends that the rejection of his claim based on the promotional nature of the post is unfounded, and accordingly, he seeks a revision of the pay band to PB-3 (Rs. 15600-39100) with Grade Pay of Rs. 6600/-, in line with the earlier recommendations and the responsibilities of the position. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. (i) Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: The petitioner submitted that the rejection of his claim for PB-3 based on the post being promotional is unjust, as the same reasoning was not applied consistently to other promotional posts (Deputy Environmental Scientist and Deputy Environmental Engineer), which were allowed PB- 3. This selective denial constitutes discrimination. (ii) He further submitted that the State Government has failed to comply
Legal Reasoning
with the directions of this Court in CONTC No. 1962 of 2012 which held that the Dalwai Committee report could not be partially accepted. The petitioner argues that the report, which recommended PB-3 for the Sr. Law Officer, should have been implemented in full/ as per the Court’s ruling, rather than being ignored or selectively applied. (iii) The petitioner contended that the opinion of the Law Department, which affirmed that the report could not be partially accepted, was not forwarded to the Finance Department, which led to the incorrect decision to create the Sr. Law Officer post in PB-2 instead of PB-3. This Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 failure to consider the Law Department’s view further undermines the legality of the impugned order. (iv) He further contended that with the adoption of the revised Pay Scale Rules, 2017, which merged PB-2 and PB-3 into Pay Level-12, the earlier distinction between PB-2 and PB-3 is no longer valid. Hence, the petitioner’s entitlement to PB-3 should be recognized as per the revised rules, including retrospective application from the date of his promotion, along with the necessary financial and pensionary benefits. (v) The petitioner seeks to quash the order rejecting his claim for PB-3 and to ensure the retrospective application of PB-3 from 09.10.2013 to 31.12.2015. He further seeks to secure all service benefits, including pensionary benefits, based on this entitlement. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. (i) The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: The State maintains that the order passed by Opposite Party No. 1 is legally sound and that no grounds for interference exist. The Dalwai Committee’s recommendations regarding the creation of posts and the pay scale are non-binding and irrelevant as they were never approved by the Government. (ii) It is also contended that the Dalwai Committee was an internal committee of the OSPCB and not a government body, and thus its recommendations do not have the force of law. Furthermore, the Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 proposal of the OSPCB for the creation of posts was not accepted by the Government. (iii) The State insists that the Government has the discretion to accept or reject any committee’s recommendations/ including that of the Dalwai Committee, particularly in matters relating to creation of posts and fixation of pay scales. (iv) It is argued that the Senior Law Officer (L-II) post belongs to Class-III, while the Deputy Environmental Engineer and Deputy Environmental Scientist are Class-II posts. Therefore, any comparison between these posts for pay fixation is legally unsound and factually incorrect. (v) The State further argued that the fixation of pay scales falls under the executive discretion of the Government, and the petitioner cannot compel the adoption of the Dalwai Committee’s recommendations. (vi) It is emphasized that, based on Rule 38(1) of the SPCB Regulations, there is no justification for altering the petitioner’s pay scale/ as it is consistent with the pay scales of similarly placed Government employees. IV. COURT’S REASONING AND ANALYSIS: 5. 6. Heard the learned counsel for both parties and carefully perused the documents presented before this Court. It is an undisputed fact that the Dalwai Committee was constituted to assess the manpower requirements and to recommend the creation of additional posts. In its report, the Committee proposed the creation of various new positions, including that of Senior Law Officer, while also Page 6 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 recommending the maintenance of parity with corresponding government posts. The recommendations pertaining to the posts of Deputy Environmental Scientist (DES) and Deputy Environmental Engineer (DEE) were duly accepted by the State. However, the recommendation regarding the creation of the Senior Law Officer post was not implemented. The State justified this omission by asserting that the government possesses the discretion to accept or reject any recommendations made by the Dalwai Committee, particularly those related to the creation of posts and the fixation of pay scales. 7. The expert committees are constituted by Government departments to provide assistance in the discharge of their functions, particularly in complex or specialized matters. However, it is equally settled that the reports and recommendations of such committees are advisory in nature and not binding upon the Government. The decision to accept, modify, or reject the recommendations rests solely within the discretion of the Government, which is under no obligation to adopt the committee’s findings or proposals. 8. Now, there are no legal infirmities in place when the government partially implemented the recommendations of the Dalwai Committee. The fact that the recommendations regarding posts like Deputy Environmental Scientist and Deputy Environmental Engineer were accepted by the government, but the Senior Law Officer post was not, falls squarely within the government’s discretion to either approve or reject specific proposals from an advisory committee. Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 9. 10. 11. So, the next question that arises for this Court’s determination is whether it possesses the jurisdiction to scrutinize and potentially revise the decision made by the government in the exercise of its administrative discretion. The law on this matter is no longer res integra, with a multitude of judicial precedents establishing that the scope for judicial review of administrative actions is inherently limited, particularly where the decision-making process is closely tied to technical expertise. At this stage, it is useful to refer to the observations of the Supreme Court in ShriSitaram Sugar Co. Ltd. v. Union of India1wherein it held that, in judicial review, courts do not substitute their judgment for that of legislative or executive bodies on factual matters, provided those findings are reasonable and evidence-based. Judicial inquiry is limited to determining whether the findings align with law and satisfy the test of reasonableness. The relevant portion is reproduced herein: “The Court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonable supported by evidence. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the “feel of the expert” by its own view. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact, which are conclusive, provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and 11990 AIR 1277. Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 whether such findings are consistent with the laws of the land.” 12. It must be noted that while the scope of judicial review in administrative actions is inherently constrained, it remains extant in specific circumstances. These circumstances were eloquently delineated in the landmark 1985 case CCSU v. Minister for Civil Services,2 which identified the core grounds for intervention: illegality, procedural impropriety, and irrationality. Moreover, the judgment hinted at the potential expansion of these grounds in the future, with the inclusion of the doctrine of proportionality, a principle already embraced by certain members of the European Economic Community, adding an additional layer of scrutiny to administrative decision-making. Lord Diplock observed in that case as follows: “...Judicial review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by Judicial review. The first ground I would call ’illegality’, the second ’irrationality’ and the third ’procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add future of the principle of ’proportionality’, which is recognised in the administrative law of several of our fellow members of the European Economic Community....” 13. While substantiating on the policy of ‘irrationality’/ Lord Diplock observed as following: 21985 (1) AC 374. Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 “By irrationality, I mean what can now be succinctlybe referred to as ’Wednesbury unreasonableness’... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at”. 14. In light of Lord Diplock’s suggestion, it can be concluded that the present case does not fall within the scope of Wednesbury unreasonableness. The rejection of the petitioner’s claim/ though contested, is not so manifestly irrational as to justify judicial intervention under the Wednesbury principle. The government’s decision to place the Senior Law Officer in PB-2, despite recommendations from the Dalwai Committee and other supporting documents, was made within the executive’s discretionary powers. Under the Wednesbury test, a decision must be “perverse” or “irrational” to the extent that it defies all reasoned judgment. 15. The abovementioned precedents make it clear that the doctrine of judicial review of administrative action is confined to assessing whether the action in question is fair, reasonable, and in substantial compliance with established procedural norms. The court’s role is not to substitute its judgment but to ensure that the administrative decision is free from arbitrariness and has adhered to the prescribed legal framework. 16. Judicial review is inherently case-specific, dependent on the unique facts and circumstances surrounding each matter. When we apply it to the present set of facts, we see thatthe decision to reject the petitioner’s claim for PB-3 appears to fall within the government’s discretion to Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 modify the recommendations of an advisory committee, particularly in light of the administrative considerations that may have influenced the final decision. While the petitioner’s claims of discrimination are compelling, they must be weighed against the broader legal framework governing the creation of posts, pay scales, and the role of expert committees in advising the government. 17. The petitioner has prayed for this Court for a direction to create a new post with PB-3 pay scale. However, it is well-established that courts must exercise caution when dealing with matters that pertain to the creation of new posts or the formulation of administrative policies, particularly when these decisions involve complex operational and financial considerations. The resolution of such disputes often requires a careful balance of public policy, fiscal responsibility, and institutional needs, all of which fall within the exclusive domain of the government. As the decision to create or modify posts inherently involves assessing various factors such as staffing requirements, budgetary allocations, and the broader implications for public administration, it is primarily for the government to make these policy decisions. 18. In fact, the Supreme Court in the case of Divisional Manager, Aravali Golf Club &ors. vs. Chander Hass &Anr.3emphatically held that the creation of a post is not a mere bureaucratic formality, but rather an exercise steeped in executive or legislative authority, imbued with significant economic and policy considerations. To this effect, the Court held as under: 32008 AIR SCW 406. Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 “The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the Courts cannot take upon themselves the power of creation of a post..” 19. Thus/ while the petitioner’s grievance is understandable/ it is not the role of the Court to intricately engage with the procedural complexities of post creation and pay fixation that are intrinsically tied to government policy. Given the intricacies involved, it would be inappropriate for this Court to intervene in the government’s decision- making process without a fuller and more substantial presentation of evidence, particularly on issues such as financial implications and operational feasibility. 20. When this Court examines the present case in the context of established laws and judicial precedents, the scales of justice undoubtedly tilt in favor of the State. However, it is equally important to recognize the dynamics at play when expert committees are constituted, particularly when such committees’ recommendations impact the careers and livelihoods of employees. In situations where employees have vested interests and expectations from the process, the government must be aware of the scrutiny under which its decisions will inevitably come. 21. In these circumstances, when employees place their trust in the process, a mere declaration that the committee’s recommendations are non- Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 binding or that distinctions between employee classes justify a disparity in pay scales may not suffice to quell concerns. It becomes not only prudent but also desirable for the government to provide a more comprehensive and reasoned explanation to the employees. This explanation should clarify why their expectations, grounded in the recommendations of the committee, cannot be met, especially when such expectations are based on an implicit promise of fairness and equal treatment. 22. To simply assert that the committee’s findings are advisory/ or that there is a legal distinction between the classes of employees, does little to address the deeper concerns of those affected. Employees are entitled to more than just bare assertions; they deserve an articulated, transparent rationale that acknowledges their legitimate interests. In the realm of administrative decision-making, particularly where career progression and pay scales are at stake, a fuller explanation is essential to maintain trust in the system and to ensure that the process is not seen as arbitrary or dismissive of the interests of those it affects. V. CONCLUSION: 23. After a thorough examination of the facts, legal principles, and judicial precedents, the Court finds no grounds to interfere with the decision of the State. The petitioner’s claim for the revision of the pay scale cannot be sustained/ as the government’s discretion in accepting or rejecting the Dalwai Committee’s recommendations remains intact. 24. Accordingly, this Writ Petition is dismissed. Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 25. However, this Court urges the opposite parties to carefully reconsider the petitioner’s requests and concerns/ taking into account the recommendations of the Law Department, as well as the present and previous orders of this Court, to assess the feasibility of upgrading the Senior Law Officer position to PB-3. 26. Interim order, if any, passed earlier stands vacated. (Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the17th Dec., 2024/ Page 14 of 14