The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.12563 of 2018 Nageswar Patnaik …. Petitioners Mr. S.Mohanty, Advocate State of Odisha an Others …. -versus- Opposite Parties Mr. A. Tripathy, AGA Mr. P.C. Chhincani, Adv. (for O.P. No.4) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. 14. 1. This matter ORDER 10.07.2025 taken up is through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the parties. 3. The present Writ Petition has been inter alia challenging order dt.14.07.2021 so passed by pp. Party No.5 under Annexure-14. Vide the said order, benefit of TBA Scale of Pay on completion of 15 years of service and benefit of ACP extended after completion of 25 years of service as well as RACP as provided under ORSP Rules, 2017 so extended in favour of the Petitioner vide orders issued on 31.12.2016 under Annexure-15 series was cancelled inter alia holding that the Petitioner is not eligible to get the said benefit. 4. It is the case of the Petitioner that Petitioner while working as an Asst. Teacher in Gopabandhu Municipal High School, Rayagada earlier managed by the Urban // 2 // Development Deptt., the school in question was taken over in the year 2004 and Petitioner accordingly became a Govt. employee from the date of such taken over. 4.1. It is also contended that after being taken over as a Government employee and on being satisfied with regard to the date of entering of the Petitioner into service as 10.11.1981, benefit of TBA/ACP/RACP were extended in his favour vide orders issued by the Opp. Party No.5 on 31.12.2016 under Annexure-15 series. It is contended that after being extended with such benefits vide order issued under Annexure-15 series and without issuing any notice and show-cause, the said benefits were cancelled vide the impugned order dt.14.07.2021 under Annexure-14 basing on the resolution issued by the Department on 30.08.2017 under Anexure-16. 4.2. It is the main contention of the learned counsel appearing for the Petitioner that since Petitioner on being found eligible was extended with the benefits vide orders issued under Annexure-15 series, the same could not have been cancelled without following the principle of natural justice. Since prior to issuance of any show- cause, the benefits were cancelled vide the impugned order, the same is not sustainable in the eye of law,in view of the decision of the Hon’ble Apex Court in the case of State Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1. Hon’ble Apex Court in the case of Rajesh Agarwal in Para 41 & 42 has held Page 2 of 8 // 3 // as follows:- of Orissa v. Binapani Dei [State “41. In State of Orissa v. Binapani Dei, AIR 1967 SC 1269], a two-Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to be heard. This Court further held that an administrative action which involves civil consequences must be made consistent with the rules of natural justice : (AIR p. 1271, para 9) “9. … The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” 42. In Maneka India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , a seven- that any person this Court held Judge Bench of prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.” Gandhi v. Union of 4.3. A further submission was also made that even though as reflected in the impugned order basing on the resolution issued by the Department on 30.08.2017, the benefits so extended were cancelled, but as per the Resolution, the benefits were not required to be cancelled. It is contended that as provided in the said resolution, such benefits were extended with the following condition: After careful consideration, Government have been Page 3 of 8 // 4 // to extend the benefit of Time Bound pleased Advancement (TBA)/Assured Career Progression (ACP)/Revised Assured Career Progression (RACP) Scale of Pay under different ORSP Rules to he teaching and non-teaching employees of taken-over Primary. Lower Secondary (M.E) and High School of Urban Local Bodies in the State computing their period of service rendered both under Urban Local Bodies and Government fold. the The payment of arrear dues so accrued on account of pay fixation under T.B.A scale with effect from 28.02.2004, ACP scale with effect from 0101.2006 and R.A.C.P Scale of Pay with effect from 01.01.2013 or thereafter, as the case may in terms of different ORSP Rules is to be made to the employees concerned in the following priorities:- 1. The cases of deceased employee. 2. The case of retired employees. 3. The cases of employees, who are to retire during the year 2017-18 and 4. The cases of the other employees. This has been concurred in by the Finance Department vide their noting NO.64 dated 06.06.2017 in file No.SME-GHS-GHS-0025-2015. 4.4. It is further contended that subsequent to the resolution issued under Annexure-16, Government vide letter dt.20.07.2018 under Annexure-20, clarified the position with regard to entitlement of ex-Urban local body employees to get the benefit of TBA/ACP/RACP with the following condition so reflected in clause-2 of the said letter. 2. The initial date for the purpose of TBA/ACP/RACP for the ex-ULB employees is to be counted from the date from which the concerned employees received salary from the ULBs 4.5. Learned counsel appearing for the Petitioner contended that since Petitioner initially joined under the urban local body on 10.11.1981 and subsequently, the school was taken over in the year 2004, in view of the stipulation contained in the resolution and the Page 4 of 8 // 5 // clarification issued in the letter dt.20.07.2018 under Annexure-20, the ground on which the benefit has been
Decision
cancelled vide the impugned order is not sustainable in the eye of law and it requires interference of this Court. It is also contended that the Petitioner is a retired employee having retired from service on attaining the age of superannuation on 28.02.2017. It is also contended that after cancellation of the benefit vide the impugned order, no recovery has been made from the Petitioner. 5. Mr. P.C. Chhinchani, learned counsel appearing for the Municipality on the other hand does not dispute the joining of the Petitioner in the school in question so run by the Municipality at the relevant point of time as 10.11.1981. It is also contended that the school pursuant to the resolution of the Urban Development Deptt. as well as the School and Mass Education Department was taken over in the year 2004. 6. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand while supporting the impugned order made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.5 (wrongly typed as Opp Party No.4). 6.1. It is contended that even though Petitioner was extended with the benefit of TBA/ACP/RACP vide orders issued under Annexure-15 series on 31.12.2016, but in view of the resolution issued by the Government on 30.08.2017 under Annexure-16, Petitioner since was Page 5 of 8 // 6 // found ineligible to get the benefit, the benefits were cancelled vide the impugned order dt.14.07.2021 under Annexure-14. 6.2. It is also contended that since Petitioner was earlier working in an urban local body school and the school was subsequently taken over, even though Petitioner’s date of appointment was taken as 10.11.1981, but his claim is covered under the 1974 Rules and as per the said Rules, Petitioner is not eligible to get the benefit . 7. To the stand taken in the counter affidavit, learned counsel appearing for the Petitioner contended that Petitioner has been rightly extended with the benefit with due consideration, vide orders issued under Annexure-15 series and the same could not have been cancelled without following the principle of natural justice. 8. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that Petitioner while continuing in a school managed by Opp Party No.4 w.e.f 10.11.1981, the school was taken over by the Government in the year 2004. While so continuing as a Government employee vide order issued under Annexure-15 series on 31.12.2016, Petitioner was extended with the benefit of TBA/ACP/RACP. After getting all such benefits, Petitioner attained the age of superannuation on 28.02.2017. But as found, much after the retirement of Page 6 of 8 // 7 // the Petitioner, the impugned order was passed by cancelling the benefit so issued under Annexure-15 series vide the impugned order dt.14.07.2021 under Annexure-14. 8.1. Since in the counter affidavit so filed by the State- Opp. Parties, no document has been enclosed showing that prior to such cancellation, Petitioner was given an opportunity of hearing on the ground of non-compliance of principle of natural justice and placing reliance on the decision as cited supra, this Court is of the view that without following the principle of natural justice, the benefits could not have been cancelled. 8.2. Therefore, on the ground of non-compliance of the principle of natural justice, this Court is inclined to quash the impugned order dt.14.07.2021 so passed by Opp. party No.5 under Annexure-14. While quashing the said order, this Court directs Opp. party No.5 to take a fresh decision by giving due opportunity of hearing to the Petitioner. 8.3. Since Petitioner has already retired since 28.02.2017, Petitioner is directed to appear before Opp. party No.5 on or before 25.07.2025. On his appearance, Petitioner be issued with the show-cause inter alia raising the ground for cancelling the benefit. Petitioner be allowed four (4) weeks time to file his reply after being served with the show-cause. On such receipt of the reply, Opp. party No.5 shall take a fresh decision in accordance with law, in which this Court expresses no Page 7 of 8 // 8 // opinion. 8.4. With the aforesaid observation and direction, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaiton of order Location: high court of orissa, cuttack Date: 15-Jul-2025 14:57:09 Page 8 of 8