Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.15926 OF 2021 An application under Articles 226 & 227 of the Constitution of India. Dr. Bholanath Mishra : Petitioner -Versus- State of Odisha and others : Opposite Parties For Petitioner For Opposite Parties : Mr. A.K.Biswal, Advocate Mr. R.K.Muduli, Advocate : Mr. P.K. Rath, Sr. Advocate Mr. A. Behera, Advocate Mr. S.K. Behera, Advocate Mr. P. Nayak, Advocate Mr. S. Das, Advocate Mr. S.B. Rath, Advocate J U D G M E N T CORAM : JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.09.2023 :: Date of Judgment : 06.10.2023 1. By way of the present Writ Petition, the Petitioner is making two fold prayers namely restoration of his designation as General Manager (Geo Technology) & protection of his remuneration and for regularization of his service. Page 1 of 12 // 2 // 2. The broad contour of the facts of this case is that pursuant to the advertisement dated 16.02.2008, the Petitioner participated in the interview and got selected as Geographic Information System (GIS) Expert. The Petitioner was appointed on tenure basis on 27.02.2008 at the consolidated remuneration of Rs.14,000/-. His services have been extended from time to time and the remuneration was also increased to Rs.45,000/-. 3. On 08.03.2019, the Opposite Party No.2 in its 32nd meeting had taken the following decision:- “E. Revision of monthly remuneration of GIS Expert & Env. Specialist, System Expert & MIS Specialist and Shelter Coordinator and Social Management specialist. Three employees of OSDMA, i.e. GIS Expert & Env. Specialist, System Expert & MIS Specialist and Shelter Coordinator and Social Management Specialist have been engaged in OSDMA against the approved posts since more than 11 years. Presently, they are getting monthly consolidated remuneration of Rs.45,000/- (GIS Expert) and Rs.40,000/- (System Expert and Shelter Coordinator) as per the last revision made by the Governing Body of OSDMA on 1.2.2014 and since last 5 years no revision of their salary has been made. Three employees have given representatives for enhancement of their remuneration. Taking in to consideration their long experience in the field of disaster management and expertise in their respective fields, the enhancement of their remuneration was considered keeping on views 7th pay commission recommendations, remunerations of other state level positions in different organizations and prevailing market conditions. Since they are working for a long period in OSDMA, their designations were sought to be changed to General Managers for independently looking after the works. The proposed remuneration would be as follows:- Name of the Employee Dr. B. N. Mishra, GIS Expert & Env. Specialist Existing Remuneration Rs. 45000/- Proposed Remuneration Rs. 80000/- Page 2 of 12 // 3 //
Legal Reasoning
Sri A. Ray, System Expert & MIS Specialist Sri K.C. Bisoi, Shelter Coordinator and Social Management Specialist Rs. 40000/- Rs. 75000/- Rs. 40000/- Rs. 75000/- 4. The Petitioner has been upgraded in the designation to be General Manager (Geo Technology) from GIS Expert. Keeping in view the 7th pay commission recommendation, the remuneration was also revised and upgraded to Rs.80,000/- from that of Rs.45,000/-. Accordingly, on 08.03.2010, an Office order was issued communicating the decision of the 32nd meeting of the Governing Body of Opposite Party held on 02.03.2019 to the Petitioner. 5. The Petitioner joined in the said position of General Manager (Geo Technology) and his services were being extended time to time up till 01.02.2021. 6. It appears, on 01.02.2021, 34th meeting of the Governing Body of Opposite Party No.2 (OSDMA) was held and in the said meeting a decision was taken to recall the earlier decision taken in 32nd meeting which was held on 02.03.2019. It was decided that the Petitioner would be re-designated as GIS Expert, his original designation and his salary would be downgraded to Rs.70,000/- from Rs.80,000/-. Page 3 of 12 // 4 // 7. The Petitioner9s grievance is that the Opposite Party unilaterally has not only reverted him back to GIS Expert from General Manager (Geo Technology) but also downgraded his pay scale. The decision of the 34th meeting of the Governing Body downgrading the pay scale and re-designating the Petitioner was communicated to the Petitioner by the Office order dated 08.04.2021, which reads as under:- “ODISHA STATE DISASTER MANAGEMENT AUTHORITY (A GOVERNMENT OF ODISHA AGENCY) No. 978/OSDMA FILE No.297/2008 (Estt.) Date:08.04.2021 OFFICE ORDER In pursuance of the decision of the 34th meeting of the Governing Body of OSDMA held on 01.02.2021, the following modification have been made in the official designation and monthly consolidated remuneration of Dr. Bholanath Mishra with effect from 08.04.2021. Name Sl. No. Present official Designation Reverted back to the following designation GIS Expert Present consolidated monthly remuneration Rs.80,000 Revised monthly consolidate remuneration Rs.70,000 1 Dr. Bholanath Mishra General Manager (Geo- technology) This order supersedes all previous orders issued to this effect. By orders of Managing Director Executive Director (Admn.)= Perusal of the Office order dated 08.04.2021 indicates that the Petitioner has indeed been reverted back to his original post i.e. GIS Expert and his monthly remuneration was also revised to Rs.70,000/- from Rs.80,000/-. Page 4 of 12 // 5 // 8. On the basis of the aforementioned grievances, the Petitioner has filed the present Writ Petition inter alia making the following prayer:- <It is, therefore, prayed that in the interest of justice, this Hon9ble Court may graciously be pleased to admit this writ application, issue Rule Nisi, calling upon the opp. parties to show cause as to why the office order dtd. 08.04.2021 (Annexure-7) issued as per direction of the Managing Director in reducing the designation of the petitioner to GIS Expert from General Manager (Geo Technology) and the monthly remuneration of the petitioner from Rs.80,000/- to Rs.70,000/- as well as the decision taken in respect of the petitioner in reducing redesignating the petitioner in the 34th meeting of the Governing Body of Odisha State Disaster Management Authority on 01.02.2021 (Annexure-6) shall not be quashed declaring the same as illegal and arbitrary; And as to why the Opp. Party shall not be directed to take step to regularize the service of the petitioner.= in reducing salary and the in 9. The second prayer made by the Petitioner need not be adjudicated at this stage as the same gives absolutely a different cause departing from the cause arising out of the Office order dated 08.04.2021 as reproduced above. Therefore, I am of the considered view that the legality and sustainability of the order dated 08.04.2021 needs to be gone into at this stage. 10. Heard Mr. A.K.Biswal, learned counsel for the Petitioner and Mr. P.K.Rath, learned Senior Counsel for the Opposite Parties. 11. Mr. Biswal, learned counsel for the Petitioner submits that the decision of the 34th meeting of the Governing Body which culminated into the Office order dated 08.04.2021 is an unilateral Page 5 of 12 // 6 // decision behind the back of the Petitioner. The earlier decision in the 32nd meeting of the Governing Body was a suo moto decision taken by the Governing Body bestowing the benefit of upgradation of the salary as well as designation from GIS Expert to General Manager (Geo Technology) by weighing his performance. Once he was upgraded/promoted to the post of General Manager (Geo Technology), he cannot be reverted back without assigning any reason or affording an opportunity of being heard. The down gradation of the pay and designation behind the back of the Petitioner and without affording him an opportunity is against the principle of natural justice. He has relied upon the judgment of Hon9ble apex Court in the case of BCPP Mazdoor Sangh Vs. N.T.P.C. reported in AIR 2008 SC 336. Para-29 of the said judgment reads as follows:- “29. The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording opportunity of pre-decisional hearing and the same would amount to arbitrary and violative of Article 14. As pointed out earlier, in the case on hand, the employees are neither party to tripartite Agreement nor they have been heard before changing their service condition. Therefore, the action of the management is violative of Article 14 of the Constitution of India. Similar view has been taken by this Court in H.L. Trehan vs. Union of India and others (1989) 1 SCC 764. In para 11 of the judgment, this Court observed as under: <….… It is now a well-established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving Page 6 of 12 // 7 // the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice.= Mr. Biswal, learned counsel for the Petitioner contended that reversion from superior post to inferior post and reduction of pay scale falls under <Major Penalty=. Therefore, without following due process, the same could not have been inflicted on him. 12. Mr. Rath, learned Senior Counsel for the Opposite Parties vehemently opposes the contentions raised by Mr. Biswal, learned counsel for the Petitioner. At the outset he questions the very
Decision
maintainability of the Writ Petition. 13. To buttress his argument he has relied upon the judgment of the Hon9ble apex Court in the case of St. Mary’s Education Society and another Versus Rajendra Prasad Bhargava and others reported in 2022 SCC Online SC 1091. Relying upon paragraphs-43 & 44 of the said judgment, Mr. Rath, learned Senior Counsel submits that the services rendered by the Petitioner being not a 8Public Function9 cannot be made subject matter of a writ jurisdiction. Paragraphs-43 & 44 of the said judgment reads as under:- Page 7 of 12 // 8 // “43. In the background of the above legal position, it can be safely concluded that power of judicial review under Article 226 of the Constitution of India can be exercised by the High Court even if the body against which an action is sought is not State or an authority or an instrumentality of the State but there must be a public element in the action complained of. 44. A reading of the above extract shows that the decision sought to be corrected or enforced must be in the discharge of a public function. No doubt, the aims and objective of Appellant 1 herein are to impart education, which is a public function. However, the issue herein is with regard to the termination of service of Respondent 1, which is basically a service contract. A body is said to be performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so.= 14. To delve upon the issue of maintainability of the Writ Petition, I have perused the Manual of Odisha State Disaster Management Authority (OSDMA) and it9s by law. Although OSDMA has been registered under the Societies Registration Act, 1860 on 29.12.1999 but the State Government has direct control over the function and management of the said society. Therefore, the society has been designated as a <Government of Odisha Society=. The constitution of the society also indicates that all the senior officers of the State Government forms part of it and decisions are being taken at the highest level of the Government. The impugned 34th meeting of the Governing Body of the Society wherein the decision of reversion and down gradation of the salary of the Petitioner was taken attended by the following officials of State Government:- Page 8 of 12 // 9 // Members Present IAS, Chief Secretary & 1. Shri Suresh Chandra Mahapatra, Chairman, Governing Body, OSDMA 2. Shri Pradeep Kumar Jena, IAS, Development Commissioner, Additional Chief Secretary, Rural Development Department, Special Relief Commissioner, Odisha & Managing Director, OSDMA 3. Shri Sanjeev Chopra, IAS, Additional Chief Secretary, Home Department. 4. Dr. Saurav Garg, IAS, Principal Secretary, Agriculture and Farmers9 Empowerment. 5. Shri Ashok K.K. Meena, Department 6. Sri Bishnupada Sethy, IAS, Principal Secretary, Revenue and DM Department 7. Shri Y.K. Jethwa, IPS, Additional DG of Police, Law and Orders 8. Sri Jagadananda, Member Secretary, CYSD 9. Representative of Panchayati Raj & Drinking Water Department 10. Representative of Department of Water Resources 11. Representative of H & UD Department 12. Representative of Works Department 13. Shri Ranjan Kumar Mohanty, Indian Red Cross Society, Odisha State Branch, Bhubaneswar.= IAS, Principal Secretary, Finance Therefore, the Opposite Party even though being a Registered Society but definitely an instrumentality of the State. In that view of the matter, under Article 12 of the Constitution of India, the Opposite Party/Society could be treated as <State=, as such amenable to the writ jurisdiction. 15. On the aforementioned background this Court entertains the Writ Petition. 16. On perusal of the impugned order and the proceeding of 34th meeting indicates that the decision of re-designation and down Page 9 of 12 // 10 // gradation of the remuneration has been taken by the Governing Body unilaterally without putting the Petitioner to notice. 17. It is settled principle of law that down gradation in the terms of the emoluments or down gradation of the designation is nothing but inflicting <Major Penalty= and entails stigmatization. Therefore, minimum requirement was to follow the principle of natural justice by giving opportunity to the Petitioner to be heard. Perusal of the records indicates that there is no adverse report or doubtful performance of the Petitioner came to the light during his tenure as GIS Expert or General Manager (Geo Technology). Therefore, the impugned conduct of the Opposite Party is left to speculation in absence of any reasoning. The impugned decision of the Governing Body in its 34th meeting under the heading of <Review of orders of decision regarding re-designation of persons and remuneration pertaining to the Petitioner and the Office order dated 08.04.2021 being hit by the doctrine of <audi alterm partem= is liable to be set aside. 18. Accordingly the Writ Petition is partly allowed. By allowing the prayer No.1 made in this Writ Petition. However, liberty is reserved for the Opposite Party to proceed in accordance with law, if so advised, to reconsider the case of the Petitioner regarding his Page 10 of 12 // 11 // down gradation of the pay remuneration and re-designation by following due process of law. 19. In so far as the second prayer of the Petitioner regarding regularization of service is concerned albeit this Court is not adjudicating the issue at this stage, but on the teeth of the observation of Hon9ble Supreme Court in the matter of Secretary, State of Karnataka and others v. Uma Devi (3) and others reported in (2006) 4 SCC 1, the case of the Petitioner worth consideration by Opposite Party. 20. Mr. Rath, learned Senior Counsel for the Opposite Party in this regard submits that all the employees of the society are temporary employees and under the contractual appointment. There is no regular cadre structure created in the Society. However, from the perusal of record it indicates that the Petitioner was appointed as a GIS Expert on the approved/sanction post. That being so paragraph-53 of the judgment of Hon9ble Supreme Court in Umadevi (3) (supra) may enure to the benefit of the Petitioner. Paragraph-53 of Uma Devi (supra) reads as under:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as in S.V. Narayanappa , R.N. Nanjundappa explained and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of Page 11 of 12 // 12 // orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.= In the light of the observations made by the Hon9ble apex Court in the aforesaid paragraph of Uma Devi (supra) judgment, it is expected that the Opposite Party take an appropriate decision in regard to the regularization of the service of the Petitioner. 21. The Writ Petition is accordingly partly allowed. (S.S. Mishra) Judge Orissa High Court, Cuttack. The 6th October, 2023 /Swarna Prava Dash, Junior Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 06-Oct-2023 15:42:04 Page 12 of 12