The High Court
Case Details
IN THE HIGH COURT OF ODISHA, CUTTACK W.P.(C) No.7491 of 2016 Bhimsen Sahoo and others ....... Petitioners -Versus- State of Odisha & another ....... Opp. Parties For Petitioners : Mr. R. Roy, Advocate For Opp. Party No.1: Mr. S.N. Pattnaik, A.G.A. For Opp. Party No.2: Mr. S. Behera, Advocate ---------------------------- P R E S E N T: MR. JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 17.04.2023 Date of Judgment: 17.05.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioners, ten in numbers, have filed this Writ Petition challenging the Order dated 11.04.2016 passed by the Opposite Party No.2, vide which their grade pay was reduced from Rs.4200/- to Rs.1900/- on the ground that the said action of Opposite Party No.2 is illegal, arbitrary and without giving them notice of show cause or opportunity to have their say. 2. The case of the Petitioners in nutshell is that, all of them, being selected, were appointed as Bee Keeping Field Man, shortly, hereinafter ‘BKFM’ in Class-III technical post by the Secretary, Odisha, Khadi & Village Industries Board, shortly, hereinafter ‘OKVIB’ (Opposite Party No.2) and all of them joined in their respective posts on different dates. Pursuant to the same, though similarly placed BKFM namely, Pravakar Tripathy and Gagan Bihari Dhal were promoted to the post of Supervisor and subsequently, Pravakar Tripathy also got further promotion to the post of Development Officer, despite availability of promotional avenue for BKFM to the post of Supervisor, the Opposite Party-Management did not give promotion to the Petitioners to the post of Supervisor. 3. On completion of 15 years of service, Opposite Party No.2 i.e. OKVIB, sanctioned and disbursed Time Bound Advancement (TBM) in favour of the Petitioners with effect from various dates as per the Orissa Revised Scales of Pay (ORSP) Rules, 1998. The Opposite Party No.2 also sanctioned and disbursed Assured Career Progression (ACP) on completion of 25 years of service with effect from various W.P.(C) No.7491 of 2016 Page 2 of 31 dates as per the ORSP Rules, 2008. When the matter stood thus, the Government of Orissa in Finance Department issued a Resolution dated 06.02.2013 for extending the benefit of Revised Assured Career Progression (RACP) under RACP Scheme effective from 01.01.2013. Vide the said Resolution, it was directed that there shall be three financial upgradation under the RACP Scheme, counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. An employee after competing ten years of service in entry grade will be considered for first upgradation under the RACP Scheme. Similarly, an employee competing 20 years of service and has got only one upgradation either by promotion or by RACP Scheme, will be considered for the second upgradation and an employee completing 30 years of service and has got two upgradations either by RACP Scheme or by promotion or both, will be considered for third upgradation under the RACP Scheme. Vide paragraph-10 of the said Resolution of the Finance Department dated 06.02.2013, it was directed that the employees of cadre having promotional hierarchy, will get the grade pay of the promotional post. As W.P.(C) No.7491 of 2016 Page 3 of 31 per paragraph-3 of the said Resolution, the Screening Committee is to decide the eligibility of the persons for upgradation under the RACP Scheme. In view of Schedule-I, read with Regulation-8 of the Orissa Khadi & Village Industries Board Regulations, 1960, shortly, hereinafter “Regulations, 1960”, the Petitioners have promotional hierarchy from the post of BKFM to the post of Supervisor. Since all of them have completed 30 years of service in the post and grade, are entitled to get the grade pay of the promotional post of third upgradation of Rs.4200/- with effect from 01.01.2013. In view of the Finance Department Resolution dated 06.02.2013, the Government constituted the Screening Committee. Government of Odisha in Micro, Small and Medium Enterprise (MSME) Department, vide letter dated 01.11.2013, communicated to the Opposite Party No.2 according approval as to sanction of Revised Assured Career Progression Scheme (RACPS) for the employees of OKVIB as proposed therein, as per Finance Department Resolution dated 06.02.2013 and subsequent Office Memorandum/Resolution dated 08.08.2013 issued by the Finance Department regarding revision of grade pay. For the W.P.(C) No.7491 of 2016 Page 4 of 31 purpose of sanction of RACPS to the employees of OKVIB, a Screening Committee was constituted. The Secretary of the Board was authorised to sanction RACPS in favour of the employees of the OKVIB subject to clearance of the Screening Committee. The said communication was concurred by Finance Department vide Order dated 21.10.2013, inter alia, with a stipulation that Government will not bear any additional liability on the said count and the said financial liability shall be met out of the grants provided in favour of the OKVIB for the year 2013-14. Pursuant to the said communication, the meeting of the Screening Committee was held on 22nd January, 2014 for granting benefits under the RACPS. Vide paragraph-B of the said proceeding of meeting dated 22nd January, 2014, it was decided that in case of BKFM, on completion of 10 years of service, grade pay of Rs.2400/- (Junior Supervisor), on completion of 20 years of service, grade pay of Supervisor Rs.2800/- (Supervisor) and on completion of 30 years of service grade pay of Rs.4200/- (next higher grade pay) should be given taking into consideration their promotional aspect. The Opposite Party No.2, based on the said recommendation of the Screening W.P.(C) No.7491 of 2016 Page 5 of 31 Committee, sanctioned grade pay of Rs.4200/- under RACP Scheme in the scale of pay of Rs.9300-34,800/- in favour of the Petitioners vide Office Order dated 21.03.2014. The Petitioners were given grade pay of Rs.4200/- with effect from 01.01.2013. When the matter stood thus, all of a sudden, the Opposite Party No.2 vide Office Order dated 11.04.2016, without giving reasonable opportunity to the Petitioners, arbitrarily and with ulterior motive and mala fide intention, reduced/revised the grade pay of the Petitioners from Rs.4200/- to Rs.1900/- although it was sanctioned and disbursed to the Petitioners in view of the decision of the Screening Committee dated 22nd January, 2014. It has been stated that such action of the Opposite Party No.2 is unreasonable, product of non-application of mind, arbitrary, mala fide and violative of principles of natural justice and hit under Articles 14 & 16 of the Constitution of India. It has also been pleaded that the promotional hierarchy of BKFM being the post of Supervisor in view of Schedule-I (Regulation-8) of Regulations, 1960. Gagan Bihari Dhal and Pravakar Tripathy being promoted to the post of Supervisor
Legal Reasoning
from the post of BKFM and further promotion of Mr. Tripathy W.P.(C) No.7491 of 2016 Page 6 of 31 to the post of Development Officer well demonstrates that there is a promotional hierarchy of BKFM to the post of Supervisor as well as to the post of Development Officer. Hence, it has been contended that the Petitioners are entitled to get grade pay of next higher promotional post on completion of 30 years of service in view of Finance Department Resolution dated 06.02.2013 and such action of the Opposite Party No.2 in reducing/revising the grade pay of Petitioners from Rs.4200/- to Rs.1900/- is hit under Articles 300A of the Constitution of India. Accordingly, a prayer has been made to quash the impugned Order dated 11.04.2016 as at Annexure-5 and allow the Petitioners to draw grade pay as was sanctioned earlier and paid to them under Annexure-4 series. 4. Being noticed, the Opposite Party No.2 has filed a Counter Affidavit justifying the action of the Board for passing the impugned order dated 11.04.2016. The sum and substance of the Counter Affidavit filed by Opposite Party No.2 is that there was no promotion hierarchy from the post of BKFM to the post of Supervisor in view of Schedule-I (Regulation-8) of the said Regulations, 1960 and the post of W.P.(C) No.7491 of 2016 Page 7 of 31 Supervisor is the base level post and not the promotional post. It has further been contended that due to the observation of the Local Fund Audit (LFA), the grade pay of the Petitioners have been reduced and steps are being taken for recovery of the excess amount. 5. In response to the Counter Affidavit file by the Opposite party No.2, a Rejoinder Affidavit has been filed by the Petitioners indicating therein that the Screening Committee of OKVIB, under the Chairmanship of the Secretary, having taken a conscious decision regarding their entitlement to grade pay of Rs.4200/- in terms of the RACP Scheme and the revised pay scale being extended to the Petitioners under Annexure-4 series, the impugned Order dated 11..4.2016 reducing/revising grade pay to Rs.1900/- from Rs.4200/- suffers from vice and is unsustainable. It has also been pleaded that the Opposite Party No.2, while chosing to bring on record the objection raised by the LFA with regard to the grade pay of the Petitioners, has consciously withheld information from this Court as to what prompted them for extending the enhanced grade pay to the Petitioners as per the decision of the Screening Committee W.P.(C) No.7491 of 2016 Page 8 of 31 held on 22nd January, 2014. The objection raised by the LFA cannot be a basis to promptly pass the impugned Order without the same being examined by the Board. Further, as is evident from the LFA Report, memo has been issued to the Board for producing the records showing the promotional avenue or rules related promotion for justifying the pay fixation under the RACP. Since there was no response from the Authority, on ascertaining an alleged loss of Rs.4,56,800/-, the audit suggested for recovery. As to alleged stand of non-availability of promotional avenue from the post of BKFM, it has been contended that the benefits of promotion to the Supervisor have been extended to other BKFMs such as, Pravakar Tripathy and Gagan Bihari Dhal. Referring to Section 36 of the Orissa Khadi and Village Industries Board Act, 1955, so also Orissa Khadi and Village Industries Board Regulations, 1960, it has been contended that as per the Schedule-I, the post of Supervisor, Jr. Supervisor, Soap Mistry, Ghani Mistry, Beekeeping Field Man and Oilman are kept under the technical regular establishment. It has also been pleaded that in response to the objection raised by the LFA, the Opposite Party No.2, vide W.P.(C) No.7491 of 2016 Page 9 of 31 Office Order dated 14.10.2015 addressed to the MSME Department, sought for clarification regarding the eligibility of the grade pay benefits extended to the different posts under the RACP Scheme, for taking further action at its end. The Opposite Party No.2-Board, for justifying its decision of extending enhanced grade pay under the RACP Scheme to the posts of BKFM and Ghani Mistry under the Technical Regular Establishment and the post of Mechanic (P.V.) and Wood Cutter coming under the Schematic Establishment as per the Regulations, 1960, has relied upon the meetings of the Board held on 22.02.1994 and 21.03.1998, wherein it was decided to fill up the post of Supervisor by way of promotion from amongst employees with +2 qualification and technical training and matriculate qualification with technical training. The Opposite Party No.2 also relied on the proceedings of the meeting of the Screening Committee held on 07.01.2014 and 22.01.2014 for extending the enhanced grade pay as per the RACP Scheme. Further, the MSME Department, vide its letter dated 21.03.2016, in response to the clarification sought for by Opposite Party No.2, requested to furnish certain information for better appreciation of the W.P.(C) No.7491 of 2016 Page 10 of 31 matter. In response to the said communication, the Opposite Party No.2 vide its letter dated 18.06.2016, relying on the provisions of the Regulations, 1960, has reiterated that there is no specific Cadre Rules of the Board to regulate appointment and promotion of its employees. In absence thereof, as per the provisions prescribed under Regulation 40 of the Regulations, 1960, the Board follows the rules of the Government with regard to appointment and promotion of identical cadre existing in any Government establishment. As regard to the posts of BKFM, Mechanic (PV), Wood Cutter, Ghani Mistry etc., since such posts do not exist in other department, decisions are being taken by the Board for providing periodical promotion opportunity to the said category of employees. Further, the Board followed the procedure of promotion as laid down in Regulation-18 of the Regulations, 1960. It is evident from the letter that for the promotional post of Supervisor, the feeder posts are Paper Technician, Soap Mistry, Mechanic (PV), Ghani Mistry, Beekeeping Field Man etc. It has also been pleaded in the Rejoinder Affidavit that the document appended thereto as Annexure-11, which was obtained under the Right to W.P.(C) No.7491 of 2016 Page 11 of 31 Information Act, 2005, well demonstrates that number of persons working as Paper Technician and Ghani Mistry were promoted to the post of Supervisor. When Opposite Party No.2 itself admitted for extending promotional benefits to its employees under the Technical Regular Establishment and Schematic Establishment under Class-III, placing reliance on Regulations, 1960 and their policy decision and have extended such benefits to its employees in the past, it cannot take a contrary stand thereby, depriving the Petitioners of the benefits extended under the RACP Scheme. It has also been pleaded that when the employees under the Schematic Establishment like Mechanic (Poly Vastra) have been promoted to the post of Supervisor, the Opposite Parties cannot now take a contrary stand with regard to the promotional avenue of the Petitioners. 6. Mr. Roy, learned Counsel for the Petitioners submitted that the averments made in the Writ Petition, so also Rejoinder Affidavit and contents of the documents appended thereto, well demonstrates that the post of Supervisor is a promotional post and not a feeder post. He further drew attention of this Court to Schedule-I under W.P.(C) No.7491 of 2016 Page 12 of 31 Regulation-8 of Regulations, 1960 and submitted that Schedule-I of the said Regulations, 1960 well demonstrates that the post of BKFM comes under Technical Regular Establishment and belongs to Class-III post and the Promotional post is Supervisor. The said post of BKFM does not come under the Schematic Establishment as has been falsely and incorrectly stated in the Counter Affidavit. Further, the stand of the Opposite Party No.2 that the post of Supervisor is the base level post and not a promotional post is also incorrect and it has been intentionally so pleaded to mislead the Court. For ready reference, the Regulation-8, so also Schedule-I of Regulations, 1960 are extracted below: “8. Classification of employment.- (1) The employees of the Board shall fall under two categories, namely, (1) regular establishment; and (2) schematic establishment. [(2) All posts under the Board shall be classified by the Board into Class I, Class II, Class III and Class IV as specified in Schedule I hereto annexed. Provided that at the time of creation of a new post not mentioned in Schedule I, the Board will specify the class under which the post will be included.]” W.P.(C) No.7491 of 2016 Page 13 of 31 “SCHEDULE I (Regulation 8) Name of the posts Sl. No. Administrative Regular Establishment Technical Regular Establishment Schematic Establishment Nil Nil Nursery Keeper Mechanic (Polyvastra) Deputy Secretary (Technical) Deputy Director (Polyvastra) Development Officer Supervisor Jr. Supervisor Soap Mistry Ghani Mistry Beekeeping Field Man Oilman Class I 1 Deputy Secretary Class II 1 Class III 1 2 3 4 5 6 7 8 Asst. Secretary Section Officer, L-II Accounts Supervisor Asst. Law Officer Auditor Senior Assistant Junior Assistant Senior Accountant Junior Accountant U.D. Assistant 14 9 10 Head Typist Senior Typist 11 Junior Typist 12 Senior Grade 13 Steno Junior Grade Steno Senior Driver 15 16 Driver 17 Driver (Heavy Vehicle) 18 Diarist Senior 19 Economic Investigator Junior Economic Investigator Junior Statistical 20 21 W.P.(C) No.7491 of 2016 Page 14 of 31 Assistant 23. Record Keeper 23 Scribe 24 Electrician 25 Assistant Class IV 1 2 Store Keeper 26 Manager (CV) Attender Treasury Sarkar Cleaner Helper Sweeper 3 4 5 6 Watchman Peon 7 Salesman- 8 cum-Attender REVIVED SARANJAM KARYALAYA Class III 1 Manager (RSK) Nil Class IV 1 Watchman- cum-Peon 2 Watchman” 1. Mechanic 2. Wood Cutter 3. Carpenter 4. Blacksmity- cum-Tinsmithy- cum-welder (Emphasis supplied) 7. Mr. Roy further submitted that the LFA Report dated 30.04.2015, as has been appended as Annexure-A/2 to the Counter, well demonstrates that though objection memo was issued for production of records showing the promotional avenue or rules related to the promotion or the Cadre Rules of OKVIB employees, as the authority did not reply, thus the LFA suggested for recovery of the loss caused due to such alleged irregularity by the local authority. He further submitted that Government of Odisha in MSME W.P.(C) No.7491 of 2016 Page 15 of 31 Department, vide letter dated 01.11.2013, sanctioned RACP for the employees of Opposite Party No.2-Board subject to clearance of Screening Committee. The Screening Committee, under the Chairmanship of its Secretary, vide its proceeding dated 22nd January, 2014, decided to extend the benefits under the RACP Scheme to 14 BKFM, including the Petitioners, by extending grade pay on completion of 10 years, 20 years and 30 years of service. After having extended the financial upgradation with effect from 01.01.2013, without noticing the Petitioners and hearing them, the action of Opposite Party No.2 in reducing the grade pay of Rs.4200/- to Rs.1900/-, citing the objection of the LFA and the decision of the Committee, pending receipt of clarification from the Government, is per se illegal, unjustified and deserves interference by this Court. Mr. Roy further submitted that even though a stand has been taken in the Counter Affidavit that the post of Supervisor is a feeder post and not a promotional post meant for BKFM, but the action of the Opposite Party No.2 read with Schedule-I (Regulation-8) of Regulations, 1960, so also promotional orders annexed to the Rejoinder Affidavit as W.P.(C) No.7491 of 2016 Page 16 of 31 Annexure-11 series, well demonstrate that the post of Supervisor is a promotional post. He further submitted that the Board, pursuant to LFA observation dated 30.04.2015, sought for clarification from the Government in MSME Department regarding eligibility of grade pay benefits under the RACPS in favour of certain posts. While seeking clarification, it has been clearly mentioned therein that as per Board’s meeting dated 22.02.1994 and 21.03.1998, it was decided to fill up 20% of the vacancy in the post of Supervisor by way of promotion of employees meeting the eligibility criteria. It was also clarified that although it has no Cadre Rules, the Board followed the Cadre Rules of Government in terms of Regulation-40 of Regulations, 1960. Mr. Roy submitted that despite having passed the impugned Order dated 11.04.2016, the Board further, in response to the letter dated 21.03.2016 of the MSME Department, vide letter dated 18.06.2016, has clarified that the RACP extended to the employees is justified citing the relevant Regulations under the Regulations, 1960 and thus, the Petitioners are entitled to be benefited under the RACP Scheme. Relevant portion of the said clarificatory letter dated 14.10.2015 of the W.P.(C) No.7491 of 2016 Page 17 of 31 Board addressed to the Additional Secretary to Government, M.S.M.E Department being germane to the present lis, is extracted below: “It is mentioned here that as per Schedule-1 (Regulation-8) of Regulation-1960 of the Board, BKFM and Ghanimistri are coming under technical regular establishment and Mechanic, Mechanic (PV) and Wood Cutter are coming under the Schematic establishment supporting regulation-1960 of Odisha Khadi and Village Industries Board is enclosed herewith for reference of Annexure-B. In this context, it is stated here that the Board in its meeting held on Dt.22.02.94 in Agenda No.13 decided in principle for filing of the post of Supervisors of the Board. In the said meeting it has been decided to fill up 20% of the vacancy by way of promotion having qualification +2 with technical training and scale of pay of employees Rs.1200- 2,040/- subsequently the Board in its meeting held on 21.3.1998 have also decided is in Agenda Item No.5 for promotion to the post of Supervisor having qualification Matriculate with Technical qualification. The extract of the Resolution of the Board date 11.2.1994 and 21.03.1998 are enclosed at Annexure-C & D for kind reference. Further, it is mentioned here that the Board has no cadre rule and it follows the cadre rule of Government, as per Rule-40 of Odisha Khadi and Village Board Regulation-1960. The Screening Committee of RACP’S in its Meeting held on 27.01.2014 considered to allow the G.P./ to the BKFM-Rs.2400/- on completion of 10 years of service (as G.P. of Junior Supervisor G.P. Rs.2800/- on completion of 20 years of service (as G.P. of W.P.(C) No.7491 of 2016 Page 18 of 31 Supervisor) G.P. Rs.4200/- on completion of 30 years of Service. Copy of the proceeding of Screening Committee held on 22.01.2014 is enclosed herewith for reference at Annexure-E. XXX XXX XXX In view of the above fact, I am to request you to communicate necessary clarification regarding eligibility of G.P. benefits under RACP’s in favour of the aforesaid posts for taking further action at this end. A Statement showing information on RACP’s provided by the Board to the above categories of employees placed at annexure-G for reference.” (Emphasis supplied) 8. To substantiate the prayer made in the Writ Petition, Mr. Roy relied on the judgments in Nawabkhan Abbaskhan v. The State of Gujarat, reported in (1974) 2 SCC 121, in Divisional Superintendent, Eastern Railway, Dinapur and others v. Sri L.N. Keshari and others, reported in 1975(3) SCC 1, in State of Orissa v. Binapani Dei, reported in 1967 (2) SCR 625, in Neelima Misra v. Hrinder Kaur Paintal and others, reported in (1990) 2 SCC 746, in Grid Corporation of Orissa and others v. Rasananda Das, reported in (2003) 10 SCC 297 and Order dated 23.03.2022 passed by this Court in Akshay Kuamr Dwivedy v. State of Odisha [W.P(C)(OAC) No.3936 of 2016]. W.P.(C) No.7491 of 2016 Page 19 of 31 9. Mr. Behera, learned Counsel for Opposite Party No.2 submitted that as per the observation of the LFA, reduction of grade pay has been made and steps are being taken for recovery of the excess amount. He further submitted that the Opposite Party No.2 was justified to reduce the grade pay of the Petitioners from Rs.4200/- to Rs.1900/- in view of the observation of LFA. Mr. Behera submitted that there is no need to give any prior notice for recovery or to follow the principles of natural justice in view of the undertakings given by the Petitioners, which have been appended to the Counter Affidavit as Annexure-E/2. The Petitioners consciously gave individual undertakings that excess payment, if any, paid on account of Revised Assured Career Progression Scheme (RACPS) detected in future, will be recovered from their salaries/retirement benefits. Relying on the Judgment of the Supreme Court in High Court of Punjab and Haryana and other v. Jagdev Singh, reported in (2016) 14 SCC 267 and drawing attention of this Court to paragraphs-10 and 11 of the said Judgment, he submitted that the Opposite Party No.2 has every right to ensure refund W.P.(C) No.7491 of 2016 Page 20 of 31 of the said amount paid to the Petitioners, as it was observed by the Audit as to excess payment made to the Petitioners. 10. In Nawabkhan Abbaskhan (supra), vide paragraph-14, the apex Court held as follows: “14. Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal. May be that in ordinary legislation or at common law a Tribunal, having jurisdiction and failing to hear the parties, may commit an illegality which may render the proceedings voidable when a direct attack is made thereon by way of appeal, revision or review, but nullity is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, we may roundly conclude that the order of an administrative authority charged with the, duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab initio of no legal efficacy. XXX” 11. In L.N. Keshari (supra), vide paragraph-6, the apex Court held as follows: “6. The respondents were confirmed in the scale of Rs.110-180. The appellants have fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on conformation became entitled to rights to the post and to the scale of pay fixed by the Board.” W.P.(C) No.7491 of 2016 Page 21 of 31 12. In Binapani Dei (supra), vide paragraph-10, the apex Court held as follows: “10. XXX XXX The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies 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 constitution 'setup 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 perform; 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 tails of justice be ignored and an order to the prejudice of 'a person is made, the order is a nullity.” 13. In Neelima Misra (supra), vide paragraphs-19 and 22, the apex Court held as follows: “19. We find it difficult to accept the reasoning underlying the aforesaid view. Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi-judicial and administrative functions. An administrative function is called quasi- judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation. the decision is called 'purely administrative' and there is no third category. This is what was meant by Lord Reid in Ridge v. Baldwin, [1963] 2 All E.R. 66, 75-76: W.P.(C) No.7491 of 2016 Page 22 of 31 "In cases of the kind with which I have been dealing the Board of Works ..... was dealing with a single isolated case. It was not deciding, like a judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated-something analogous to a judge's duty in imposing a penalty …. "So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister or department may also be of that character and then the rules of natural justice can apply in much the same way ......” 22. An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin, (supra) and state of Orissa v. Dr. Binapani Dei & Ors.” 14. In case of Jagdev Singh (supra), the issue which came for consideration before the apex Court was whether Appellant was justified to adjust the excess payments made W.P.(C) No.7491 of 2016 Page 23 of 31 to a Judicial Officer following the notification of the Revised Pay Rules, as when the Rules were revised and notified on 7th May, 2023, it was found that the payment in excess had been made to the Respondents. Hence, the Supreme Court, relying on its Judgment in State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334, held as follows: “10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, W.P.(C) No.7491 of 2016 Page 24 of 31 would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” (emphasis supplied). 11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” 15. Admittedly, in Jagdev Singh (supra), the issue was for recovery of the excess amount paid to the Respondent whereas, in the present case, pursuant to concurrence of the Finance Department and a decision being taken by the Screening Committee, the Petitioners were extended grade pay on completion of 10 years, 20 years and 30 years of service with effect from 01.01.2013 and in the Office Order dated 21.03.2014 (Annexure-4), it was mentioned that excess payment in this regard, if any, detected in future, will be recovered from the salary of the employee. In terms of the said Office Order, there was an undertaking executed by each of the Petitioners that “I do hereby undertake that excess payment, if any, paid on W.P.(C) No.7491 of 2016 Page 25 of 31 account of Revised Assured Career Progression Scheme (RACPS) detected in future will be recovered from my salary/retirement benefits etc.” There was no mention as to right to revoke the said Order dated 21.03.2014 and that to without affording opportunity to have their say. Hence, this Court is of the view that such action of the Opposite Party No.2 is illegal and unjustified. 16. That apart, in the further clarificatory letter dated 18.06.2016 of the Secretary, OKVIB, addressed to the Joint Secretary to Govt. MSME Department, Odisha, Bhubaneswar (Annexure-10), it was clearly mentioned as to which is the promotional post and which is the feeder post. Paragraphs-2 & 3 from the said communication, being relevant, are extracted below: “2. There is no specific cadre Rule for the Board to regulate appointment and Promotion under the Board. In absence of this & as per provision prescribed under Rule 40 of OKVIB Regulation-1960, the Board follows the Rules of Govt. in regard to appointment and promotion for the identical cadre exists in Govt. i.e. Assistant Cadre, Auditors cadre, Accounts Cadre, Typist Cadre. In addition there are some Ex-cadre posts i.e. BKFM, Mechanic (PV) Mechanic, Wood Cutter & Ghani Mistry etc. available and such posts do not exist in other Departments of Govt. For such posts decisions are being taken by the Board for W.P.(C) No.7491 of 2016 Page 26 of 31 periodical promotional opportunity. But in general posts under Regular Administrative Establishments are promoted to the posts under the same cadre of posts under Regular Technical establishment. The Board has also followed the procedure of promotion as laid down in rule 18 OK & VIB Regulation 1960 which is enclosed for reference at Annexure-‘C’. 3. The Board has provided promotion to the following posts indicating the feeder post as against each. Sl. No. 1 2 3 4 5 6 7 8 9 the Name of Promotional Post Section Officer Sr. Asst. Accounts Supervisor Accountant Development Officer Supervisor Diarist Scribe Record Keeper 10 Treasury Sarkar Sr. E.I. Statistical Investigator Sr. Grade Steno 11 12 13 14 Name of the Feeder Post Sr.Asst/Manager(CV)/Manag er RSK U.D.Asst/Asst. Store Keeper- cum-Assistant Accountant Jr. Accountant Supervisor Paper Technician/Soap Mistry, Mechanic(PV) Ghani Mistry, BKFM etc. Subject to fulfillment required of qualification/criteria Class IV Employees (Senior) with required qualification Class IV Employees (Senior) with required qualification Class IV Employees (Senior) with required qualification Class IV Employees (Senior) with required qualification Jr. E.I. Jr. Statistical Asst. Jr. Grade Steno Head Typist Sr. Typist W.P.(C) No.7491 of 2016 Page 27 of 31 15 16 17 Sr. Typist Attender Jr. Typist Class-IV Deputy Secretary (T) Audit Officer/Marketing Officer” (Emphasis supplied) 17. From the facts, as well as the settled position of law, as detailed above, this Court is of the view that the Judgment of the apex Court cited by the Opposite Party No.2 is not applicable to the facts and circumstances of the present case, as the issue before the Supreme Court in the said case as to justification of the employer to detect the excess payment made to the Respondent Officer and ask for refund of the same was in view of his own undertaking. Whereas, in the present lis, the issue is as to justification of employer to revoke/reduce the grade pay of the Petitioners, that to when the clarification was awaited from the State Government and the employer itself, pursuant to LFA objection, repeatedly wrote to the Government justifying the decision of the Board to enhance the grade pay of the Petitioners from 1900/- to Rs.4200/- 18. In view of the mentioning in the impugned Officer Order dated 11.04.2016 that such action reducing the grade W.P.(C) No.7491 of 2016 Page 28 of 31 pay of the Petitioners from Rs.4200/- to Rs.1900/- pending receipt of clarification from Government and communication made by the Opposite Party No.2 to the Government in the said regard dated 14th October 2015 (Annexure-8), which has been extracted above, this Court is also of the view that the post of Supervisor is a promotional post and the feeder post for such promotion is BKFM and other posts, as has been detailed above and that the Petitioners are working in Regular Establishment not under the Schematic Establishment and the Opposite Party No.2-Board was not justified to reduce the grade pay of the Petitioners. 19. Admittedly, the documents on record well demonstrate that the Opposite Party No.2-Board itself, after passing the impugned Order, clarified the Government in the MSME Department that the post of BKFM is a feeder post for promotion to the post of Supervisor. Further, the impugned Order was issued when the clarification sought for, was pending with the State Government. Hence, this Court is of the view that the impugned Order dated 11.04.2016, as at Annexure-5, vide which the grade pay of the Petitioners was reduced to Rs.1900/- from Rs.4200/- which was admittedly W.P.(C) No.7491 of 2016 Page 29 of 31 issued without affording any opportunity to the Petitioners to have their say, is illegal and unjustified. Accordingly, the said Office Order dated 11.04.2016 is set aside and quashed. 20. Needless to mention here that during pendency of the present Writ Petition, vide interim order dated 08.06.2016 passed in Misc. Case No.8908 of 2016, it was ordered that operation of the impugned Order dated 11.04.2016 under Annexure-5 in respect of Sl. Nos.1, 3 to 7 and 9 to 12 shall remain stayed till next date. In view of such interim Order, the Petitioners are getting the said revised grade pay of Rs.4200/- in terms of the Office Order dated 21.03.2014. That apart, as some of the Petitioners were superannuated during pendency of the present Writ Petition, on being approached, this Court vide Order dated 26.03.2019, in I.A. No.1880 of 2019, recording the concession made by the learned Counsel for the Opposite Party No.2, directed the Opposite Parties to pay the retirement dues to Petitioner Nos.2, 3, 5 & 7 as expeditiously as possible. Mr. Roy, learned Counsel for the Petitioners submitted that though retirement dues of the said Petitioners W.P.(C) No.7491 of 2016 Page 30 of 31 were paid, but it was not based on the revised grade pay of Rs.4200/- which was extended to the Petitioners with effect from 01.01.2013. Hence, the Opposite Parties are also directed to pay the differential after retiral dues, if any, to the said Petitioners as the impugned order as at Annexure-5, is set aside. 21. Accordingly, the Writ Petition is disposed of. No Order as to cost. …….….…………………… S.K. MISHRA, J. Odisha High Court, Cuttack The 17th May, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-May-2023 18:24:19 W.P.(C) No.7491 of 2016 Page 31 of 31