Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 634 (ORI)

Ganesh Chandra Behera v. Berhampur University

2019-11-19

B.R.SARANGI

body2019
JUDGMENT : Dr. B.R. Sarangi, J. 1. Of the two writ petitions, as mentioned above, W.P.(C) No. 29460 of 2011, in which petitioners are two in number, has been filed for the following relief:- "It is therefore, prayed that your Lordships be graciously pleased to admit the writ application, issue rule NISI in the nature of writ of mandamus or any other writ(s) as deem fit and proper calling upon the Opp. Parties to show cause as to why the letter No. No. 9940(3)Admn-II (NT) date: 31.10.2011 of Berhampur University to hold the review DPC and all actions pursuant thereto including the orders under Annexures-6, 7 and 7(A) front dating the promotion of the petitioners and reducing their scale of pay at Sr. Assistant Level shall not be quashed and why said Opp. Parties shall not be prevented from holding any DPC to review the promotion of the petitioners given in the year 1998 and if the DPC is held as per the dates fixed and if the position of the petitioners at Sr. Assistant are revised then their seniority in the said promotional post be counted from 22.12.1998 be protected and alternatively why the petitioners promotion to the post Sr. Assistant w.e.f. 22.12.1998 and their scale of pay against the said post including all benefits shall not be protected, if at all any such DPC is held for re-fixation of seniority of any employees. In the event of the Opp. Parties fail to show-cause or show insufficient cause said rule be made absolute." And W.P.(C) No. 30837 of 2011, in which petitioners are six in number, has been preferred seeking following relief:- "It is therefore, prayed that your Lordships be graciously pleased to admit the writ application, issue rule NISI in the nature of writ of mandamus or any other writ(s) as deem fit and proper calling upon the Opp. Parties to show cause as to why the letter No. No. 9940(3) Admn-II (NT) date : 31.10.2011 of Berhampur University vide annexure-6 to hold the review DPC and all actions pursuant thereto shall not be quashed and why said Opp. Parties shall not be prevented from implementing the decision if taken on 11.11.11 and 12.11.11 affecting the seniority and pay of the petitioners in the post of Sr. Asst. and alternatively why the petitioners promotion to the post Sr. Parties shall not be prevented from implementing the decision if taken on 11.11.11 and 12.11.11 affecting the seniority and pay of the petitioners in the post of Sr. Asst. and alternatively why the petitioners promotion to the post Sr. Assistant w.e.f. 22.12.1998 and 7.12.2000 of the petitioner No. 3 and their scale of pay against the said post including all benefits shall not be protected, if at all any such DPC is held for re-fixation of seniority of any employees. In the event of the Opp. Parties fail to show-cause or show insufficient cause said rule be made absolute." In both the writ petitions, relief sought by the petitioners being similar to each other, they were heard together and are disposed of by this common judgment. 2. The factual matrix of the case, in hand, is that the petitioners were appointed as Junior Assistants in Berhampur University and were continuing as such. Due to a resolution passed by the syndicate, the posts of nine employees of the University, those who were senior to the petitioners and continuing as Junior Assistant, were upgraded to Senior Assistant subject to approval from the Chancellor and the Government. But such approval having been refused, the Chancellor passed order reverting back those upgraded Senior Assistants to the post of Junior Assistant. In the meantime, due to vacancies created on retirement of employees, the petitioners were promoted to the post of Senior Assistant. The employees, who were reverted back to the post of Junior Assistant, challenged their reversion before this Court by filing W.P.(C) Nos. 12854, 11368, 12562, 12564 and 12566 of 2007. This Court disposed of those writ petitions, vide common order dated 04.08.2011, upholding the order of reversion and directed that they would be placed and adjusted in the gradation list where they were placed earlier on the date of up-gradation. It was further directed that if any consequential benefits accrued to them from the date of up-gradation to the date of reversion, the same would be conferred on them in accordance with the rules governing the field and they would also be entitled to higher salary without any recovery during the material period. It was further directed that if any consequential benefits accrued to them from the date of up-gradation to the date of reversion, the same would be conferred on them in accordance with the rules governing the field and they would also be entitled to higher salary without any recovery during the material period. In compliance of the said order, the University conducted review DPC and the employees, who were reverted to the post of Junior Assistants, along with the petitioners, their cases were considered and all of them were promoted to the post of Senior Assistant. Therefore, the petitioners have claimed in these writ applications that their scale of pay should be protected, as they have worked in the promotional post during relevant period and discharged their duties in the higher post of Senior Assistant. 3. Mr. J. Pattnaik, learned Senior counsel appearing along with Mr. B.S. Rayaguru, learned counsel for the petitioner contended that though several questions have been raised in these writ applications, he Confined the prayer only to the extent that the benefits of promotion which had been granted to the petitioners from 1998 till 2008, by following DPC, and financial benefits and other benefits, which have been received by the petitioners, should not be curtailed, rather the same should be protected as these petitioners have already got promotion by way of a review DPC held by the University in compliance of order passed by this Court on 04.08.2011 in W.P.(C) Nos. 12854, 11368, 12562, 12564 and 12566 of 2007. It is further contended that the petitioners have claimed in these writ applications that the scale of pay against the post of Senior Assistant w.e.f. 22.12.1998 including all the benefits may be protected so that no prejudice will be caused to them, and that even if such a prayer has not been made in express manner, this Court can in exercise of power under Article 226 of the Constitution of India mould the relief taking into consideration the factual matrix of the case, in hand. 4. Mr. B.S. Mishra, learned counsel appearing for the University per contra contended that the petitioners have already been promoted to the post Senior Assistant, and as such, they are continuing in such post by following DPC. 4. Mr. B.S. Mishra, learned counsel appearing for the University per contra contended that the petitioners have already been promoted to the post Senior Assistant, and as such, they are continuing in such post by following DPC. So far as claim for protecting their salary and other financial benefits from 1998 to 2008 is concerned, for that purpose the petitioners can file representation before the authority so that the same can be considered and decided in accordance with law. It is further contended that the petitioners have not made specific prayer in the present writ applications in regard to the same, and thereby, the relief sought subsequently, cannot be granted to the petitioners. 5. Ms. Pami Rath, learned counsel appearing for the private opposite parties contended that they are senior in the cadre of Junior Assistant. Pursuant to resolution passed by the syndicate, their posts were upgraded to Senior Assistant, of course subject to approval of the Chancellor and the Government. As both the Chancellor and Government refused to approve such up-gradation, as a consequence thereof they faced reversion, which was challenged before this Court and vide order dated 04.08.2011 though the reversion was upheld but protection to their salary was given. Pursuant to review DPC, these private opposite parties have already got promotion and continuing in the promotional post of Senior Assistant and receiving the benefits in compliance of order passed by this Court on 04.08.2011. 6. This Court heard Mr. J. Pattnaik, learned Senior Counsel appearing along with Mr. B.S. Rayaguru, learned counsel for the petitioners in both the writ applications; Mr. B.S. Mishra, learned counsel appearing for opposite parties No. 1 and 2-Berhampur University; and Ms. Pami Rath, learned counsel appearing for private opposite parties; and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. Having a cursory glance on the materials available on record, it is revealed that on 24.05.1994, syndicate of the University decided and resolved to upgrade certain posts of Junior Assistant to Senior Assistant and in pursuance of such resolution of the syndicate, 9 Junior Assistants were upgraded to the post of Senior Assistants and those Juniors Assistants were senior most in the cadre. Similarly, on 05.05.1995, syndicate of the University decided to upgrade some posts of Junior Assistant to that of Senior Assistant and in pursuance of such resolution of the syndicate, other 9 Junior Assistants were also upgraded as Senior Assistants on 03.02.1997 and such Junior Assistants were senior most Junior Assistants, but below the aforesaid nine Junior Assistants those who were upgraded earlier by syndicate resolution dated 24.05.1994. Such up-gradation of the above Junior Assistants to the post of Senior Assistant was subject to approval by the Chancellor as well as the Government But the Chancellor and the Government refused to accord approval to such up-gradation and directed to restore back such upgraded Junior Assistant to the position which they were holding before their up-gradation, and to recover excess amount which were paid to them in the meantime. But fact remains, there was no consideration of other Junior Assistants vis-à-vis the upgraded Junior Assistants while upgrading them to the post of Senior Assistant and they were upgraded only basing on their seniority without holding DPC, as required under the Orissa Universities Recruitment & Promotion of the Non-teaching Employees Rules, 1962 (hereinafter referred to as "The Recruitment Rules"). Since the Government as well as the Chancellor refused to accord approval, orders were passed on 06.09.2007 restoring back such upgraded Senior Assistants to their previous position as was before up-gradation. 8. In between 1994 to 1997, some ministerial employees were retired, for which certain posts of the Senior Assistants fell vacant Against such retirement vacancies, some Junior Assistants, including the petitioners, were promoted to the post of Senior Assistant. The aforesaid order dated 06.09.2007 restoring those upgraded Senior Assistants to their previous posts was challenged before this Court in W.P.(C) Nos. 12854, 11368, 12562, 12564 and 12566 of 2007. The said cases, in which the petitioners were arrayed as opposite parties, were disposed by this Court, vide order dated 04.08.2011, the relevant part of which reads as under- "xx xx xx- After hearing learned counsel for the parties, we are of the opinion that there is no infirmity in the order reverting the petitioners to the posts where they were working on the pre-upgraded stage. But the case of the petitioners is that now they have been placed at the bottom of the gradation list. But the case of the petitioners is that now they have been placed at the bottom of the gradation list. According to them, the order of the Chancellor has not been followed in the spirit, in which it was passed. We are also of the view that even if we do not interfere with the order of reversion, the petitioners cannot be placed at the bottom of the gradation list. They shall be placed and adjusted in the gradation list where they were placed earlier on the date of up-gradation. If there is any consequential benefit accrued to the petitioners in the meantime, i.e. from the date of up-gradation of the posts in question till the date of reversion, the same shall be conferred on them in accordance with the Rules governing the field. Accordingly, we so direct. So far as recovery from the salary of the petitioners is concerned, we are of the view that as the petitioners have worked in the higher posts and discharged the higher responsibilities attached to the said posts, they are entitled to get the higher responsibilities attached to the said posts, they are entitled to get the higher salary even if they have been subsequently reverted for the reasons that the State Government was not able to take the financial burden. This cannot be the reason for recovery of the differential amount received by the petitioners. Xx xx xx" A bare reading of the above mentioned order would indicate that this Court did not find any infirmity in the order reverting back the petitioners to the post where they were working at the pre-upgraded stage and accordingly did not interfere with the order of reversion but held that they cannot be placed at the bottom of the gradation list and they can be placed and posted where they were placed earlier on the date of up-gradation. It was further held that if any consequential benefits accrued to them in the meantime i.e. from the date of up-gradation till the date of reversion, the same should be conferred on them in accordance with the rules governing the field. It was further held that if any consequential benefits accrued to them in the meantime i.e. from the date of up-gradation till the date of reversion, the same should be conferred on them in accordance with the rules governing the field. It was also fortified that so far as recovery from their salary is concerned, since they had worked in the higher posts and discharged higher responsibilities attached to the said posts, they were entitled to get the higher salary even if they had been subsequently reverted for the reasons that the State Government was not able to take the financial burden. This cannot be a reason for recovery of the differential amount received by the petitioners. Therefore, the order so passed on 04.08.2011 clearly protects the interest of the private opposite parties No. 6 to 23 those who were upgraded to the post of Senior Assistant and reverted back pursuant to non-approval by the Chancellor as well as the Government. But so far as the petitioners are concerned, though they were made as opposite parties in those cases, no direction was issued by this Court with regard to protection of their service benefits. The order dated 04.08.2011 were received by the University on 23.08.2011. Since this Court granted three months time for compliance, which was to expire on 23.11.2011, finding no other way out, the Berhampur University proceeded with the matter for implementation of the judgment in its letter and spirit. 9. It is of relevance to note, promotion to the post of Senior Assistant of the University are governed under the Recruitment Rules and under the said rules, the posts of Senior Assistant are to be filled up by way of promotion from the posts of Junior Assistant. As such, there is no provision for direct recruitment to the post of Senior Assistant. Under Rule-13 of the Recruitment Rules, it has been provided that the post of Senior Assistant is to be filled up by way of promotion. Under Rule-15 of the Recruitment Rules, the eligibility criteria for promotion to the post of Senior Assistant have been provided. Under Rule-14 of the Recruitment Rules, constitution of Departmental Promotion Committee for promotion to different posts, including Senior Assistant, has been prescribed. Under Rule-15 of the Recruitment Rules, the eligibility criteria for promotion to the post of Senior Assistant have been provided. Under Rule-14 of the Recruitment Rules, constitution of Departmental Promotion Committee for promotion to different posts, including Senior Assistant, has been prescribed. Under Rule-15(3), it has been specifically provided that the seniority of Senior Assistants shall be according to the ranking assigned to them in the select list drawn up by the Departmental Promotion Committee. Apart from this, under Rule-11 of the Recruitment Rules it has also been provided that the seniority of each candidate in the respective cadre shall be determined on the basis of his position in the select list. The relevant provisions contained under Rule-2(b), 2(c), 3(a), 11, 13(1), 14(1), 14(2), 15(1), 15(3) are extracted below: “Definition 2(b) ‘Cadre’ means the strength of service or a part of service sanction separate unit; 2(c) “Prescribed” means by the Rules of Standing orders; Ministerial Employees 3. Ministerial establishment under University shall include- (a) Junior and Senior Assistants, Section Officers Level-II and Level-I and Office Superintendents; Seniority 11. The Seniority of each candidates in the respective cadre shall be determined on the basis of his position in the select list. Promotional Post 13.1 The following posts shall be filled up by way of promotion:- (a) S.O. Level-1-1/ Office Superintendent. (b) S.O. Level-II (c) Senior Assistant (d) Superintendent, Issue Section (e) Head Typist (f) Senior Typist (g) Personal Assistant. (h) Senior Stenographer (i) Electricians Grade-I and Grade-II (j) Driver (Heavy Vehicles) (k) Diarists and Dispatchers (l) Pasting Clerk (m) Treasure Sarkar (n) Wiremen (o) Such other posts as may be determine by the Vice Chancellor from time to time. Departmental Promotion Committee 14.(1) There shall be Departmental Promotion Committees which shall consider all cases of promotion to all ministerial and other posts and it shall make sustainable recommendations to the Vice-Chancellor for his consideration. (2) The Departmental Promotion committee for promotion to the Senior Assistants/Senior Typists shall consists of the following members:- (1) Registrar - Chairman (2) Comptroller of Finance - Member (3) Senior most Deputy Registrar – Member Promotion to the post of Senior Assistant 15.1 No Junior Assistant shall be considered for promotion to the post of Senior Assistant unless he has put in at least five years of continuance service as a Junior Assistant. 15.3 The seniority of Senior Assistants shall be according to the ranking assigned to them in the select list drawn up by the Departmental Promotion Committee.” 10. In view of the statutory provisions governing the field, in order to implement the order dated 04.08.2011 passed by this Court, the University had to constitute a DPC and consider the cases of all the employees, who were parties to the said cases, in order to place and adjust them in the gradation list where they were placed earlier on the date of up-gradation, and also grant them consequential benefits accrued on them in accordance with rules governing the field. Needless to say, the aforementioned Recruitment Rules have been framed under the Orissa University First Statute, 1990 in consultation with the Chancellor as well as the State Government and on being approved by them came into force with effect from 18.05.1992, when it was published in the official gazette. The said Recruitment Rules, being statutory, are applicable to all the Universities to whom the Orissa University Act, 1989 applies. Therefore, the University has to implement the orders of the Court in consonance with the aforementioned Rules. As a consequence thereof, on 20.09.2011, the Chancellor had also directed the University to implement the direction of the Court. Accordingly, the DPC was constituted and date of meeting of DPC was scheduled to be held on 11.11.2011 and 12.11.2011. Accordingly, notices were issued to the members of the DPC to be present in the meeting, by letter dated 31.10.2011 of the convenor of the DPC, who is in-charge of non-teaching establishment of the University. But when the DPC was started on 11.11.2011, an affidavit was received by the University from the petitioners, that this Court passed an interim order on 09.11.2011 in misc. case No. 17115 of 2011 arising out of W.P.(C) No. 29460 of 2011 wherein direction had been given that the University may hold the DPC, but shall not act upon the result of the DPC till 15.01.2012. Therefore, the DPC was held on the scheduled dates, i.e., on 11.11.2011 and 12.11.2011, but the result was not published, as directed by this Court. Therefore, the DPC was held on the scheduled dates, i.e., on 11.11.2011 and 12.11.2011, but the result was not published, as directed by this Court. "But the said interim order of this Court, having been vacated on 24.11.2011, the private opposite parties, who were upgraded to the post of Senior Assistant but were subsequently brought back to their previous position as Junior Assistant, were in the meantime promoted to the post of Senior Assistant on regular basis in the year 2010. Therefore, all such employees, including the petitioners, are continuing as Senior Assistant by following review DPC held by the University. Since by order dated 04.08.2011 the benefits accrued in favour of upgraded Senior Assistants, who had been reverted back, had been protected, no order was passed, so far as petitioners are concerned. Therefore, the petitioners have approached this Court in the present applications contending that they should also be granted equal protection, as because they had. been (discharging duties in higher post from 1998 till 2008 by getting promotion against regular vacant posts from Junior Assistant to Senior Assistant following DPC and consequent upon the review DPC they are also discharging the same duty, for which their salary should not be reduced to the basic minimum scale of pay with effect from the date they have been promoted by following review DPC. Although nothing has been placed on record to indicate that any direction was given by the Berhampur University to recover the amount for the period from 1998 to 2008 from the petitioners, but in view of the order dated 20.12.2011 in Annexure-7 shifting the date of promotion, salary of the petitioners may be reduced to the basic minimum scale of pay, and that itself clearly indicates that the petitioners, who have already received benefits as Senior Assistant from 1998 to 2008, on being given promotion by following due procedure through DPC, will suffer irreparable loss in the event consequential order is passed for recovering the amount from them. 11. At this juncture, a contention was raised by Mr. B.S. Mishra, learned counsel appearing for the University that no such prayer having been made in these writ applications, such relief cannot be granted by this Court. But, Mr. 11. At this juncture, a contention was raised by Mr. B.S. Mishra, learned counsel appearing for the University that no such prayer having been made in these writ applications, such relief cannot be granted by this Court. But, Mr. J. Pattnaik, learned Senior Counsel appearing for the petitioners contended that even if such a prayer is not made in the writ applications, this Court can mould the prayer in the fitness of things taking into consideration the factually aspect of the matter. 12. "Moulding of relief" principle was recognized by the Supreme Court in Pasupuleti Venkateswarlu v. The Motor & General Traders, AIR 1975 SC 1709. It was observed therein that though the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, the principle that procedure is the handmaid and not the mistress of the judicial process is also to be noted. Justice V.R. Krishna Iyer observed: "If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. 13. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700 , the Supreme Court again following this principle, i.e. "moulding of relief", observed as follows: "6. 13. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700 , the Supreme Court again following this principle, i.e. "moulding of relief", observed as follows: "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief." 14. In Sheshambal (dead) through LRs v. Chelur Corporation Chelur Building, (2010) 3 SCC 470 , the apex Court laid down the conditions in which the relief can be moulded: "(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise." 15. In Samir Narain Bhojwani v. Aurora Properties and Investments, (2018) 17 SCC 203 the apex Court observed that principle of moulding of relief could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. 16. In Samir Narain Bhojwani v. Aurora Properties and Investments, (2018) 17 SCC 203 the apex Court observed that principle of moulding of relief could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. 16. In Premalata Panda v. State of Odisha, 2015 (II) OLR 214 , relying upon State of Rajasthan v. M/s. Hindustan Sugar Mills Ltd., AIR 1988 SC 1621 : (1988) 3 SCC 449 where the apex Court held that the High Court which was exercising high prerogative jurisdiction under Article 226 could have moulded the relief in a just and fair manner as required by the demands of the situation, this Court, in exercise of such power under Article 226 of the Constitution of India even though no specific prayer was made in the writ petition, taking into consideration the facts and circumstances of the case, was inclined to mould the relief and passed order/direction as deemed fit and proper as prayed for by the learned counsel for the petitioner in the writ petition. 17. In view of the law laid down by the apex Court, so far as "moulding of relief" is concerned, this Court is of the considered view that even if there is nonsuch specific prayer made in the writ application, this Court can grant such relief, as has been advanced before this Court in course of hearing of the matter, at the final stage by "moulding the relief". 18. Reliance has been placed by learned Senior Counsel appearing for the petitioners on the judgment rendered in A.K. Patra, mentioned supra, in paragraphs 11, 12 and 13 whereof this Court has observed as follows:- "11. The judgment of the apex Court in Chandi Prasad Uniya L. v. State of Uttarakhand, AIR 2012 SC 2951 in which the judgment in Sahib Ram v. State of Haryana, (1995) Supp. The judgment of the apex Court in Chandi Prasad Uniya L. v. State of Uttarakhand, AIR 2012 SC 2951 in which the judgment in Sahib Ram v. State of Haryana, (1995) Supp. (1) SCC 18 : 1995 AIR SCW 1780 was taken into consideration, since there was an apparent difference of views expressed on the one hand by the apex Court in Shyam Babu Verma v. Unon of India, 1994 (2) SCC 521 and Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 and in other hand in Chandi Prasad Uniyal (supra), the matter was referred to a larger bench of three judges, but the apex court while disposing of the reference, the three-Judges Bench in State of Punjab v. Rafiq Masih, (2014) 8 SCC 883 has recorded the following observation: "6. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant therein were in exercise of its extraordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice. XX XX XX 13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment. 14. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for their appropriate disposal." 12. 14. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for their appropriate disposal." 12. Consequence thereof, the apex Court in State of Punjab v. Rafiq Masih (supra) has made their endeavour to lay down the parameters of fact situations wherein the employees who are beneficiaries of the wrongful monetary gains at the hands of the employer, may not be compelled to refund the same and the apex Court held that the instant benefit cannot extend to an employee merely on account of the fact that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. In paragraphs 7 to 10, 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 the 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 recover, 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. 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 employee concerned. If the effect of the recovery from the employee concerned 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 may 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 untouchability, to upgrade the social status of an ostracized 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, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "decretive 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, be 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. 10. In view of the aforestated 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, that 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." Finally in paragraph 18, the apex Court has held as follows: "18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within on year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (ii) Recovery from the retired employees, or the employees who are due to retire within on year, of the order of recovery. (iii) Recovery from the 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, 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." 13. Applying the law laid down in State of Punjab v. Rafiq Masih (supra) to the present-facts to since the case of the petitioner falls within the parameters of Clause (i) to Clause (iv) as delineated above, the principles laid down by the apex Court in Chandi Prasad Uniyal (supra) and of this Court in Ras Bihari Mandal v. N.T.P.C. Ltd., 2014 (Supp. 11) OLR 951 have no application. This Court is of the considered view that the direction given for re-fixation of pay and refund of salary after lapse of 10 years period, cannot sustain in the eye of law." 19. Therefore, applying the above mentioned law laid down by the apex Court and also of this Court to the present context, this Court is of the considered view that as the petitioners have worked in the higher post and discharged higher responsibility attached to the said post, being appointed against the vacant posts by following DPC, subsequently reverted, but by following review DPC again promoted to the post of Senior Assistant, therefore, the benefits which they have already received that cannot be curtailed or reduced in any manner. Consequentially, their scale of pay should be fixed accordingly and the direction given, vide order dated 20.12.2011 in Annexure-7, for reducing their salary to the basic minimum scale of pay, cannot sustain in the eye of law and the same is hereby quashed to that extent. 20. Both the writ applications are thus allowed. No order to costs.