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2019 DIGILAW 268 (ORI)

Bijay Ketan Brahma v. State Of Odisha

2019-04-02

B.R.SARANGI

body2019
JUDGMENT B.R. Sarangi, J. - The petitioner, who was initially appointed in the post of Junior Assistant under Puri-Konark Development Authority and subsequently upgraded to the post of Senior Assistant with effect from 04.03.2005, has filed this application to quash letter dated 15.09.2012 in Annexure-7, by which direction has been given to deduct Rs. 8000/-per month towards recovery of excess payment made from 04.03.2005 till 15.09.2012 with a stipulation that the amount will be refunded after acceptance of proposal of up-gradation of the post with effect from 04.03.2005 by the Government. 2. The factual matrix of the case, in hand, is that "Puri Konark Regional Improvement Trust" was created under the Odisha Town Planning and Improvement Trust Act, 1956 (hereinafter referred to the "Act, 1956"). As it was not able to achieve its objectives, the same was repealed. Consequentially, Odisha Development Authorities Act, 1982 (for short the "Act, 1982") came into force w.e.f. 07.08.1982 and under the provisions of the Act, 1982 "Puri Konark Development Authority" (in short "PKDA") was created. Section 4 of the Act, 1982 envisages "Staff of the Authority". In exercise of power conferred under Section 123 of the Act, 1982, the State Government framed "Odisha Development Authorities Rules, 1982" (in short "Rules, 1982"). As per Rule-5 thereof, the posts under the Authority (PKDA) other than that of the Secretary have been classified into four categories, namely, Class-I, II, III and IV, which carry same scale of pay as applicable to similar categories of the post in the State Government from time to time. As per Rule 5 (2), the Authority (PKDA) can create Class-I and Class- II posts for approval of the State Government. As per Rule 5(8), the strength of the establishment may be determined by the Authority (PKDA) from time to time. Therefore, so far as Class-Ill and IV posts are concerned, no approval of the Government is necessary. 2.1 Because of expansion of the work and inclusion of vast areas, the Trust Board decided in its 26th meeting under item no.24/26 for up-gradation of one post of Junior Assistant to Senior Assistant. Thereafter, the office order dated 04.03.2005 was issued notifying such up-gradation of Junior Assistant to Senior Assistant in the scale of pay of Rs. 4305-7500/-. Accordingly, a Departmental Promotion Committee was constituted to consider the candidates for promotion to different posts. Thereafter, the office order dated 04.03.2005 was issued notifying such up-gradation of Junior Assistant to Senior Assistant in the scale of pay of Rs. 4305-7500/-. Accordingly, a Departmental Promotion Committee was constituted to consider the candidates for promotion to different posts. The name of the petitioner was recommended for up-gradation/promotion to the post of Senior Assistant. Consequentially, the petitioner was promoted/appointed to the post of Senior Assistant allowing him to draw the scale of pay of Rs. 4750-7500/-with effect from 04.03.2005 for carrying higher responsibilities and was continuing in the post till he was deputed to Bhubaneswar Development Authority in the year 2006. 2.2 The Government of Odisha in Housing and Urban Development Department issued a letter on 25.07.2012 in Annexure-5 for up-gradation of two posts of Junior Assistant to that of Senior Assistant of the PKDA, where the proposal for the post-facto up-gradation of the petitioner with effect from 04.03.2005 was regretted since the promotion made by the PKDA was illegal and without any sanctioned post and, as such, it was contended that it should be prospective one, i.e., from 25.07.2012. Thereafter, petitioner filed a representation on 06.08.2012 under Annexure-6 to reconsider for grant of post-facto approval to up-gradation of post of Junior Assistant to Senior Assistant in the PKDA with effect from 04.03.2005, but the same was rejected. Thereafter, by letter dated 15.09.2012 in Annexure-7 Secretary, PKDA, Puri requested the Deputy Secretary to Government in Housing and Urban Development Department for re-consideration of proposal for such up-gradation of post from Junior Assistant to Senior Assistant w.e.f. 04.03.2005, which was regretted vide letter dated 25.07.2012. However, while forwarding a copy of the letter under Annexure-7, the Secretary, PKDA, Puri suggested the Secretary, B.D.A., Bhubaneswar to pay the petitioner Senior Assistant scale of pay at the rate of Rs. 9710/ - + GP Rs. 4200/- w.e.f. 25.07.2012 till acceptance of approval of up-gradation of post from 04.03.2005, and also proposed to deduct Rs. 8000/- per month as withheld amount towards recovery of excess payment made from 04.03.2005 till date with a stipulation that the amount would be refunded after acceptance of proposal of up-gradation of post with effect from 04.03.2005 by the Government. Hence this application. 3. Mr. 8000/- per month as withheld amount towards recovery of excess payment made from 04.03.2005 till date with a stipulation that the amount would be refunded after acceptance of proposal of up-gradation of post with effect from 04.03.2005 by the Government. Hence this application. 3. Mr. P.K. Das, learned counsel appearing for the petitioner contended that the petitioner, having been duly promoted after fulfilling all the criteria of the Recruitment Rules, had performed his duty as Senior Assistant with effect from 04.03.2005 and is still continuing in the said post. Therefore, the direction given for recovery of the excess amount for the period from 04.03.2005 to 25.07.2012, when the PKDA itself in its 8th meeting held on 01.03.2005 upgraded the post of the petitioner from Junior Assistant to Senior Assistant and in its 9th meeting resolved to get post-facto up-gradation of the post of the petitioner with effect from 04.03.2005, is non est in the eye of law. It is further contended that the amount, sought to be recovered, was paid towards salary meant for the post of Senior Assistant for discharging the duty of higher responsibility assigned to the petitioner with effect from 04.03.2005. Therefore, opposite party no.2 has no authority to suggest the opposite party no.3 to reduce the salary of the petitioner and recover the same from him which has already been paid to him. To substantiate his contention he has relied upon Sarat Kumar Samal vs. State of Odisha, (2017) 1 OLR 273 . 4. Although no counter affidavit has been filed by the State, but Mr. B. Senapati, learned Addl. Government Advocate appearing for State contended that pursuant to order dated 25.07.2012 the petitioner has been allowed to discharge his duty as Senior Assistant after up-gradation of the said post with effect from 25.07.2012 prospectively. The proposal for post-facto up-gradation of the post with effect from 04.03.2005 was regretted by the Government, since promotion made by the PKDA from that date, without any sanctioned post, was illegal. He further contended that as such, the Government has not directed for recovery of any amount from the petitioner, and that in the order impugned in Annexure-7 dated 15.09.2012, which has been issued by the opposite party no.2, it has been clearly indicated that the amount, which has been directed to be recovered, will be refunded after acceptance of proposal for up-gradation of post w.e.f. 04.03.2005 by the Government. Therefore, opposite party no.2 has to justify how salary in upgraded post of Senior Assistant has been paid to the petitioner when the post was not sanctioned. 5. Mr. S.C. Mohanty, learned counsel appearing for opposite party no.2 contended that the decision of 9th Development Authority meeting regarding proposal for up-gradation of post has been sent to the Government for post-facto approval vide letter dated 11.07.2006. But as an interim measure, the PKDA has taken a decision to reduce the petitioner's pay with effect from 04.03.2005, as the petitioner has less than six years of service and before superannuation the PKDA has ordered to withhold Rs. 8000/- per month towards excess payment made from 04.03.2005 till 25.07.2012. The up-gradation of the post of Junior Assistant to Senior Assistant has been made with prospective effect from 25.07.2012. Therefore, the excess amount already paid is to be recovered subject to approval by the Government w.e.f. 04.03.2005. By so submitting, he justifies the order passed by the authority directing to recover an amount of Rs. 8000/ - per month towards excess payment made from 04.03.2005 till 25.07.2012. 6. This Court heard Mr. P.K. Das, learned counsel for the petitioner; Mr. B. Senapati, learned Additional Government Advocate for the State; and Mr. S.S. Mohanty, learned counsel appearing for opposite party no.2-PKDA. Though pleadings between the petitioner and opposite party no.2 has been exchanged and no counter affidavit has been filed by opposite party no.1 and on the basis of the order dated 25.07.2012 communicated by the State Government to the Secretary, PKDA, the Addl. Government Advocate argues the matter, with the consent of learned counsel for the parties the case is being disposed of finally at the stage of admission. 7. In the instant case, the petitioner is admittedly holding Class-Ill post as Junior Assistant. As per Rule 5(2), the PKDA can create Class-I and Class-II posts with the approval of the Government. As per Rule 5(8), the strength of the establishment may be determined by the PKDA from time to time. Therefore, the power has been vested with PKDA to create posts in Class-III and Class-IV keeping in view its requirement. As such, approval of the Government for creation of Class-Ill and Class-IV post by PKDA may not be required as per the statutory provisions governing the field. Therefore, the power has been vested with PKDA to create posts in Class-III and Class-IV keeping in view its requirement. As such, approval of the Government for creation of Class-Ill and Class-IV post by PKDA may not be required as per the statutory provisions governing the field. More so, PKDA has been empowered to take a decision in the matter of strength of establishment from time to time. In exercise of such power, if PKDA has decided to upgrade the post of Junior Assistant to Senior Assistant in its 26lh meeting vide item no.24/26 by notifying the said up-gradation of the post of Junior Assistant to Senior Assistant, vide office order dated 04.03.2005 in the scale of pay of Rs. 4750-7500/-, which was subsequently revised to Rs. 9710/-with Grade Pay of Rs. 4200/- w.e.f. 25.07.2012, allowing the petitioner to continue in the said post and extending the benefits of the scale admissible to the post, the same could not have been denied subsequently. 8. The resolution passed by the Authority in item no.24/26 reads thus:- "Item No.24/26: Creation/up-gradation of The Post of Jr. Asst. To The Rank Of Sr. Asst. The Board approved to move the Govt, for up-gradation of one post of Jr. Asst, to the post of Sr. Asst, basing on the Rules of the Govt." The aforesaid decision has been given effect to by PKDA in its subsequent meeting vide item no.16/8 which reads thus:- "Item No.16/8: Confirmation of up-gradation of post of Jr. Asst, to the post of Sr. Asst. Complied Sri B.K. Brahma has been promoted on the recommendation of recruitment and promotion committee with effect from 4.3.2005." But subsequently, for the confirmation of up-gradation of post of Junior Assistant to Senior Assistant, it was decided to get approval from the Finance Department. Asst, to the post of Sr. Asst. Complied Sri B.K. Brahma has been promoted on the recommendation of recruitment and promotion committee with effect from 4.3.2005." But subsequently, for the confirmation of up-gradation of post of Junior Assistant to Senior Assistant, it was decided to get approval from the Finance Department. Accordingly, correspondences were made with the Government and on 28.07.2011 the Government wrote letter to opposite party no.2, with reference to the letter dated 07.05.2011, with regard to up-gradation of post of Junior Assistant to Senior Assistant in PKDA, Puri seeking clarification whether PKDA has submitted a proposal for giving ex-post-facto approval for up-gradation of one post of Junior Assistant to that of Senior Assistant or up-gradation of one post of Junior Assistant to that of Senior Assistant or both (1) & (2), i.e., up-gradation of two posts of Junior Assistant to that of Senior Assistant and if so, furnish necessary documents for consideration of the case. In response to the said letter, opposite party no.2 in its letter dated 07.05.2011 communicated to the Government justifying the up-gradation of post stating as follows:- "There are six sections in PKDA, such as Planning Section, Engineering Section, Finance Section, Allotment Section, Investigation section and Establishment Section. All the six sections are operational with less number of staff. xx xx xx Besides, PKDA has proposed to undertake different development schemes like Site and Service Scheme at Konark, Shop-cum-market complex at Konark, composite housing scheme at Puri etc. Keeping in view of the above, PKDA will need more staff in order to accommodate the work load in future days." But the Government has been pleased to upgrade two posts of Junior Assistant to that of Senior Assistant in PKDA, Puri, vide letter dated 25.07.2012 with prospective effect and consequentially proposal for post-facto up-gradation of the post of the petitioner with effect from 04.03.2005 is regretted since the promotion made to the petitioner by the PKDA was illegal without any sanctioned post. Even under the statute, PKDA is competent to take a decision with regard to Class-Ill and Class-IV posts and requirement for such up-gradation from Junior Assistant to Senior Assistant is well justified and, therefore, the Government cannot and could not have refused to grant such post-facto approval to the up-gradation of post of the petitioner with effect from 04.03.2005 taking a plea that promotion made by the PKDA was illegal without any sanctioned post. 9. It is pertinent to mention that the petitioner has filed a representation on 06.08.2012 to the Government for reconsideration of the post-facto approval of the up-gradation of the post of Junior Assistant to that of Senior Assistant by the PKDA. But in letter dated 15.09.2012, it has been specifically mentioned that power for creation of posts up to Class-Ill and below has been vested with PKDA as per Rules 6(1) and 5(2) of the Odisha Development Authority Manual. Having admitted this position in letter dated 15.09.2012, the request for reconsideration of the proposal for up-gradation of the post from Junior Assistant to Senior Assistant w.e.f. 04.03.2005, which has been regretted vide letter dated 25.07.2012 by the Government was communicated by the Secretary, PKDA, Puri to the Government with a request for up-gradation of two posts. 10. However, while forwarding a copy of the said letter dated 15.09.2012, the Secretary, PKDA, Puri suggested the Secretary, B.D.A., Bhubaneswar to pay the petitioner Senior Assistant scale of pay at the rate of Rs. 9710/- + GP Rs. 4200/- w.e.f. 25.07.2012 till acceptance of approval of up-gradation of post from 04.03.2005, and since the petitioner had less than six years of service it was also proposed to deduct Rs. 8000/- per month as withheld amount towards recovery of excess payment made from 04.03.2005 till date with a stipulation that the amount would be refunded after acceptance of proposal of up-gradation of post with effect from 04.03.2005 by the Government. 11. 8000/- per month as withheld amount towards recovery of excess payment made from 04.03.2005 till date with a stipulation that the amount would be refunded after acceptance of proposal of up-gradation of post with effect from 04.03.2005 by the Government. 11. In one hand if the power has been vested with PKDA for creation of post up to Class-Ill and below, as per Rule 6(1) and Rule-5(2) of the Odisha Development Authority Manual, and on the basis of the decision taken by PKDA if Junior Assistant post has been upgraded to the post of Senior Assistant and consequentially by following due procedure the petitioner has been allowed to continue against the said post and has been extended the benefit admissible to the said post, that amount cannot be directed to be deducted @ Rs. 8000/- per month withheld amount towards recovery of excess payment made from 04.03.2005 with a stipulation that the same would be refunded after acceptance of proposal of up-gradation of post with effect from 04.03.2005 by the Government. 12. Admittedly, the petitioner has discharged the duty higher responsibility in the post of Senior Assistant, pursuar passed by opposite party no.2, for carrying higher responsibly discharging the duty and the petitioner is entitled to salary as admissive to the said post and accordingly the same has been disbursed to him with effect from 04.03.2005. But such benefit cannot in any manner be withheld by PKDA on the plea that till post-facto approval of the Government the amount will be withheld, as the petitioner has got less than six years of service. 13. This Court in Sarat Kumar Samal, mentioned supra, considered to the extent that the petitioner has undisputedly discharged his duty in the upgraded post of Senior Assistant and paid with the salary admissible to the said post, and that at best it can be construed that the petitioner who is an employee of the University is a beneficiary of wrongful monetary gain at the hands of the employer and thereby, he cannot be compelled to refund the same as no fraud or misrepresentation is attributable to the petitioner at any stage. In paragraph 10 of the said judgment, reference was made to the case of State of Punjab vs. Rafiq Masih (white washer), AIR 2015 SC 696 , in paragraphs 7, 8, 9 and 10 of which judgment the apex Court held as follows:- "7. In paragraph 10 of the said judgment, reference was made to the case of State of Punjab vs. Rafiq Masih (white washer), AIR 2015 SC 696 , in paragraphs 7, 8, 9 and 10 of which judgment the apex Court held as follows:- "7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish un-touch ability. to upgrade the social status of an ostracised section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order, providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. 10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India." 14. Similar question had come up for consideration before this Court in Akshaya Kumar Patra vs. Managing Diector, Andhra Pradesh Power Generation Corporation Ltd., (2016) 1 OLR 627 and this Court was of the considered view that for direction given refixation of pay and refund of salary after lapse of ten years period cannot sustain in the eye of law taking into consideration the law laid down by the apex Court in Rafiq Masih mentioned supra. 15. Therefore, applying the aforesaid principles to the present context, as the case of the petitioner falls within the parameters of clause (i), (iv) and (v) of paragraph 18 of the judgment rendered in Rafiq Masih's case, mentioned supra, the order dated 15.09.2012 in Annexure-7 so far as it relates to the direction given to deduct Rs. 8000/- per month as withheld amount towards recovery of excess payment made from 04.03.2005 till date cannot sustain. 16. Admittedly, when this writ petition was entertained, this Court was pleased to pass an interim order of stay of deduction of the said amount. In view of such position, the order under Annexure-7 so far as it relates to deduction of Rs. 8,000/- per month as withheld amount towards recovery of excess amount paid from 04.03.2005 cannot sustain in the eye of law. 17. Accordingly, the same is liable to be quashed and is hereby quashed. The amount already paid to the petitioner from 04.03.2005 till 25.07.2012, the day the post was upgraded, cannot be recovered from him. The writ application is thus allowed. No order to costs.