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2018 DIGILAW 536 (ORI)

GANAPATI PRASAD CHOUDHURY v. STATE OF ORISSA

2018-05-10

S.N.PRASAD

body2018
JUDGMENT : Sujit Narayan Prasad, J - This writ petition is for quashing the order passed by the opposite party no.4 as contained under Annexure-18 dated 22.12.2004 passed by the Registrar, Berhampur University, whereby and where under, the reply to the show cause filed by the petitioner dated 8.11.2004 has been found to be not acceptable with a further direction upon them to declare the petitioner to have been appointed as Archivist with effect from the date he was so appointed and to extend all the benefit for the post of Archivist which the petitioner is enjoying from the date of his appointment and to pay to him the pay scale fixed to the post of Archivist in which the salary of the petitioner has been fixed w.e.f. 5.2.1997. 2. Case of the petitioner in brief is that in pursuance to an advertisement published by the opposite party no.2-University to fill-up the post of Assistant Archivist which was created by the Government vide office order dated 23.12.1985 w.e.f. 1.1.1985, he has been declared to be successful and in consequence thereof, he has been appointed as Asst. Archivist, joined the post on 08.10.1985. The post of Asst. Archivist was upgraded to that of Archivist in view of the need for taking the responsibility for the work of museum. The decision to that effect was taken by the Museum Committee as per Annexure-1. Case of the petitioner is that after up-gradation of the post of Asst. Archivist to that of post of Archivist, he has started discharging his duty as Archivist in pursuance to the office order dated 21.07.1999 but thereafter the authorities have issued an order on 29.07.2004 since the decision of the University to upgrade the post of Asst. Archivist to that of Archivist has not been approved by the State Government, as such they have decided to go on their substantive post and in view of such decision a show cause notice was issued to the petitioner on 8.11.2004 asking the petitioner to explain as to why the petitioner should not be brought back to his original post of Asst. Archivist and the scale of pay paid to him prior to sanction of the said higher scale be not recovered as per the undertaking given in the office order dated 21.07.1999 (Annexure-11) . Archivist and the scale of pay paid to him prior to sanction of the said higher scale be not recovered as per the undertaking given in the office order dated 21.07.1999 (Annexure-11) . The petitioner has given reply but the same has not been accepted and thereby this writ petition has been filed. 3. The contention raised by the petitioner is that it is the decision of the Syndicate being the Apex Body of the University, the post of Asst. Archivist has been upgraded to the post of Archivist and in pursuance to the decision, he has been allowed to render his duty as Archivist and also given the higher scale of pay, hence directing him to go to the post of Asst. Archivist by taking a decision to recover the excess amount paid by virtue of rendering his service as Archivist is nothing but an arbitrary exercise of power of the authority and there is no fault of the petitioner for making recovery excess salary which has been paid to the petitioner by holding the post of Archivist since the petitioner has performed duty of higher responsibility. It is the further case of the petitioner as would be evident from the rejoinder affidavit that he has been given the higher scale of pay w.e.f. 1.1.2006 by virtue of implementation of the Pay Revision, whereby and where under the post of Asst. Archivist and Archivist carry one grade pay, i.e Rs.4200/- with the one pay scale i.e. Rs.9300-35800, therefore be it Asst. Archivist or Archivist the financial implication of both the posts became equal w.e.f. 1.1.2006. It is the further case of the petitioner that while continuing as Archivist after re-designation was selected on open process of selection i.e through advertisement selection etc. as Research Officer and joined to the post of Research Officer on 19.12.2011 which is a higher post i.e. carrying scale of pay of Rs.15600- 39, 100/- with a grade pay of Rs. 5400/- and since the petitioner is continuing as Research Officer, i.e. in the higher post with higher grade pay as Archivist on the re-designation of the post of Assistant Archivist to the post of Archivist w.e.f February, 1997 till 01.01.2006, when the scale of pay of both Asst. 5400/- and since the petitioner is continuing as Research Officer, i.e. in the higher post with higher grade pay as Archivist on the re-designation of the post of Assistant Archivist to the post of Archivist w.e.f February, 1997 till 01.01.2006, when the scale of pay of both Asst. Archivist and Archivist are made equal is to be considered as to whether the petitioner may get the benefit or recovery from the salary of the petitioner. 4. Counter affidavit has been filed by both the University and the opposite party-State. The University has taken the plea that there is no post like that of post of Archivist, however the Syndicate has taken decision for up-gradation of the post of Asst. Archivist to that of Archivist subject to approval by the Vice-Chancellor and in anticipation of concurrence from the Government as well as approval of the Chancellor, the petitioner has been asked to perform duty as Archivist by granting him higher scale of pay than that post of Archivist but when the approval had been declined by the Government, the University having no option but to recover the excess amount which has been paid to him in lieu of his posting to the post of Archivist and thereby a show cause notice was issued in pursuance to the decision taken by the authority under Annexure-12 and 13 and in the light of the same, show cause notice was issued and when the authorities are found that the reply is not satisfactory, the reply given under the show cause notice has been rejected, hence there is no illegality committed by the authority. While on the other hand, the opposite party-State has taken stand in the counter affidavit that in absence of the post of Archivist, the very posting of the petitioner by way of up-gradation of the post of Asst. Archivist to that post of Archivist will be said to be illegal and when there is no post, the employee cannot get the pay scale of the higher post. Archivist to that post of Archivist will be said to be illegal and when there is no post, the employee cannot get the pay scale of the higher post. It has been stated that since the petitioner has accepted the terms and conditions of the decision of the Syndicate as would be evident from Annexure-11 and when the approval has been declined, the petitioner has got no right to assail the action of the opposite party-University before this Court since in open eye, he has accepted the conditions and thereby he has started discharging his duties with an undertaking that in case of non-approval by the State Government or Chancellor, the excess amount, if paid any, shall have to be recovered. It has further been stated that the post of Asst. Archivist has been redesignated as 'Curator', the post of Archivist is not in existent post in the Berhampur University. In the light of such statement, Mr. Amit Pattnaik, learned Addl. Govt. Advocate submits that there is no case on merit, as such the writ petition is fit to be dismissed. 5. Heard the learned counsel for the parties and after appreciation of the rival submissions, this Court has gathered from the pleading made in the writ petition, the admitted fact i.e. the petitioner initially was appointed as Asst. Archivist in terms of the advertisement published by the Berhampur University which is a sanctioned created post by the competent authority. The petitioner, while discharging his duty, the Syndicate of the University has taken decision to upgrade the post of Asst. Archivist to that of the post of Archivist in pursuance of the recommendation made by the Museum Committee as would be evident from Annexure-1. It is evident from Annexure-1, that the Museum Committee while taking decision to upgrade the post of Asst. Archivist to that of Archivist which was taken in view of needs greater responsibility for the works of Museum/Archival Cell and the said decision has been taken into consideration the fact that there is post of Archivist in the Sambalpur and Utkal University. Annexure-1 clearly reflects that there is no post like that of Archivist and as such decision was taken to upgrade the post of Asst. Archivist to that of Archivist. 6. Annexure-1 clearly reflects that there is no post like that of Archivist and as such decision was taken to upgrade the post of Asst. Archivist to that of Archivist. 6. The Deputy Registrar of the University, accordingly has made communication to the Under Secretary to the Governor of Odisha requesting therein to upgrade the post of Asst. Archivist to that of Archivist in the scale of pay of Rs.2000-60-2300-EB-75-3200-100-3500 and to place the matter before the Chancellor for its consideration which would be evident from Annexure-2 dated 11.06.1991. The Deputy Secretary to the Governor has sought for some clarification from the Deputy Registrar, Berhampur University on 22.04.1992 which relates to the financial implication in case of up-gradation of the post of Asst. Archivist, the workload of Archivist and other staff working in the Berhampur University Museum and the staffing pattern in the State Museum. The Deputy Registrar, Berhampur University in response to the communication dated 22.04.1992, has made communication on 5.6.1992 sending the required information regarding up-gradation of Asst. Archivist to that of post of Archivist. The Under Secretary to His excellency the Governor of Orissa has made correspondence to the Joint Secretary to the Government of Odisha stating therein that the financial implication of the proposal is negligible and requested to examine the matter in right perspective, while the matter was under consideration, decision was taken vide office order dated 5.2.1997 by upgrading the post of Asst. Archivist to that of post of Archivist in anticipation of the approval of the Chancellor, Berhampur University with a pay scale of Rs.2000-60-2300-EB-75-3200-100-3500. 7. It has been resolved that the petitioner who was holding the post during the relevant time as Asst. Archivist was re-designated to the post of Archivist subject to the condition of approval by the Chancellor and accordingly shall receive the scale of pay of Rs.2000-60-2300-EB75-3200-100-3500 from the date he reports himself for duty with the stipulation since the proposal is subject to approval of the Chancellor and regularization by following the proper procedure, the petitioner is required to furnish an undertaking that in the event of non-approval by the Chancellor etc., the differential amount that he shall receive on being assigned to officiate as Archivist shall be recovered from his monthly salary with the further stipulation therein that in consequence of the up-gradation of the Asst. Archivist to that of Archivist, the post of Asst. Archivist to that of Archivist, the post of Asst. Archivist has been ceased. 8. The consequential decision was taken by the authority on 21.07.1999 (Annexure-11), whereby and where under the scale of pay of the petitioner has been fixed w.e.f. 1.1.1996 and subsequent increment thereon which has been sanctioned in accordance with the Orissa Universities Revised Scale of Pay, 1999 i.e. Rs.5300-150-8300/- up to 4.2.1997 and in the scale of pay Rs.6500-200-10500/- w.e.f. 5.2.1997 on up-gradation of the post as Archivist with the condition that the pay in the revised scale will be drawn after obtaining an undertaking from the employees that excess amount, if any, detected in future, will be refunded by them and more over in case of employees those who have been upgraded and allowed higher scale of pay shall require to give an undertaking to the effect that, all financial benefits on the revised scale granted to them will be refunded in the event of the disapproval of the Chancellor/Government/Audit objections, if any. Proposal of up-gradation of the post of Asst. Archivist to that of the post of Archivist has been declined vide communication dated 29.07.2004 and in consequence thereof, direction has been issued that the employees upgraded are required to be restored to their preupgradation rank in due course of law and excess salary disbursed to them may be subjected to immediate recovery and compliance report. 9. In terms of the aforesaid decision, a show cause notice was issued to the petitioner on 8.11.2004 asking him to reply as to why he be not brought back to the original scale of pay paid prior to sanction of the said higher scale of pay and excess amount paid to him shall not be recovered as per the undertaking given by you during the time of allowing higher scale. The petitioner has submitted reply as stipulated in the show cause but the same having not been found satisfactory as would be evident from Annexure-18 dated 22.12.2004, which is impugned in this writ petition. 10. Admittedly the petitioner has been given the higher pay scale, which according to the University is of the post of Archivist which has been created by virtue of the decision taken by the Syndicate but subject to approval by the State Government. The petitioner since was working as Asst. 10. Admittedly the petitioner has been given the higher pay scale, which according to the University is of the post of Archivist which has been created by virtue of the decision taken by the Syndicate but subject to approval by the State Government. The petitioner since was working as Asst. Archivist was allowed to function as Archivist along with higher scale of pay as per the decision of the Syndicate w.e.f. 5.2.1997 subject to an undertaking given by the petitioner that in case of non-approval, he will have to refund the entire amount, which he will receive by virtue of getting higher pay scale. The petitioner has furnished an undertaking and finally decision of the Syndicate has not been approved by the State Government and thereafter the petitioner has been directed to come to the pre-upgraded post i.e. to the post of Asst. Archivist which is a sanctioned post created by the competent authority of the State Government for the Berhampur University having its own pay scale. Further admitted position is that there is no post of Archivist in the University as would be evident from Annexure-1 and also the stand taken by the opposite party-State in the counter affidavit, meaning thereby the petitioner has been allowed to continue as Archivist by giving higher pay scale only in pursuance of the decision of the Syndicate who admittedly has got no jurisdiction to take final decision and that is the reason, the up-gradation of the post along with higher pay scale has been made subject to the approval of the State Government and the undertaking has also been taken, in case of nonapproval, the pay scale, if drawn shall have to be refunded back. 11. It is the settled legal position that the post is to be created by the State Government with the concurrence of the Finance Department. It is also not in dispute that Syndicate under the Universities Act is the authority to take decision but he is not the final authority to create a post rather he can be said to be recommending body and the final decision lies with the State Government through Higher Education Department, so far as creation of the post is concerned which he also required concurrence of the Finance Department since it relates to the financial implication upon the State exchequer. Further admitted position is that the post of Archivist is not created for the Berhampur University and even if the petitioner has allowed to discharge duty of Archivist with higher scale of pay, it will be said to be against the non-existence post and if any salary has been obtained by the petitioner by rendering service to the post of Archivist which is non-existence post, he has got no right to remain in the post and further he, as per the undertaking given by him in the offer of appointment is liable to refund the entire amount. 12. This Court is making this observation on the principle that if anybody will be allowed to continue against non-sanctioned post, it will be said to be continuation of the illegal appointment, since illegal appointment has been dealt with by the constitution Bench of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vrs. Umadevi (3), (2006) 4 SCC 1 and further in the case of State of Karnataka and others vrs. M.L. Kesari and others, (2010) 9 SCC 247 , wherein such type of appointment which has been made against a post which is not sanctioned or person appointed having no eligibility condition will be said to be illegal appointment, meaning thereby the defect which is not in the nature of curable defect will be said to be illegal appointment and illegal appointment cannot be legalized, since it is non-curable. 13. In view of such legal position, in my considered view when the State Government has not approved the post of Archivist, the decision taken by the authority in making recovery the higher amount cannot be said to be unjustified and now it is to be seen as to whether the principle of natural justice has been followed or not. It is not the case of the petitioner that the decision has been taken by the authority without following the principle of natural justice rather it is evident from the material available on record that show cause notice has been issued to the petitioner which has well been responded by him and in pursuance thereto, Annexure-18 has been passed, as such it cannot be said that the petitioner has not been provided an opportunity of being heard rather the decision has been taken after following the principle of natural justice. The petitioner contends in the rejoinder affidavit that admittedly he has been assigned the duty to perform service as Archivist w.e.f. 5.2.1997 with the higher pay scale of Rs.2000-60-2300-EB-75- 3200-100-3500 but he has already been given the same pay scale as that of Archivist by virtue of recommendation of the pay revision w.e.f. 1.1.2006 and continue to get the pay scale till the date when he has got a new assignment of the post of Research Officer i.e. w.e.f. 19.12.2011, the post which carries higher pay scale, as such even if any recovery is to be made the same is to be made w.e.f. 5.2.1997 until 31.12.2005, since after 1.1.2006 he is getting the same pay scale as that of higher scale of pay which has been extended to him by virtue of holding the post of Archivist as per the decision of the Syndicate. 14. However, the rejoinder affidavit has been filed and this plea has been taken by the petitioner for the first time in the said affidavit having not pleaded in the writ petition, as such the same has not been respondent either by the Berhampur University or by the opposite partyState, hence according to my conscious view, no adjudication can be made on that ground rather it would appropriate to relegate the matter, so far as the period from 1.1.2006 to 19.12.2011 is concerned, before the competent authority to take decision in this regard, as to whether any recovery is to be made on account of excess withdrawal of salary, if the authority will come to a decision which is adverse to the petitioner, the same shall be communicated to him by passing an order of recovery, same shall be communicated to the petitioner and in that event the petitioner will have to refund back the amount as per the decision already taken by the authorities vide impugned order and in pursuance to the undertaking given by him at the time of getting higher pay scale. 15. In case, opposite party will come to the conclusion that the recovery is not admissible for the aforesaid period, same shall be communicated to the petitioner and no recovery shall be made for the aforesaid period (1.1.2006 to 19.12.2011) but the authorities in that circumstances will be at liberty to recover the amount from 5.2.1997 till 31.12.2005 as per their own decision, which is not being interfered with. 16. 16. So far as the part of direction which relates to the period from 1.1.2006 to 19.12.2011, the authorities will take its independent decision after scrutinizing the record without being prejudiced by the order passed by this Court and decision in this regard shall be taken preferably within a period of eight weeks from the date of receipt of copy of this order. With this observation and direction, the writ petition stands disposed of. Final Result : Disposed