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2021 DIGILAW 342 (ORI)

D. Maleswar Patra v. State of Odisha

2021-08-06

B.R.SARANGI

body2021
JUDGMENT : B.R. SARANGI, J. 1. The petitioner, by means of this writ petition, seeks to quash the order dated 10.04.2017 in Annexure-3, so far as it relates to the petitioner, whereby the petitioner, whose name appears at serial no. 9 and who had been appointed as ORS Group-B Officer by way of promotion, has been reverted to his parent post, i.e. Sr. Clerk, Collectorate of Nabarangpur. 2. The factual matrix of the case, in precise, is that an advertisement for recruitment to the post of Odisha Revenue Service (ORS) Group-B by way of promotion was issued by opposite party no. 1-Principal Secretary to the Government of Odisha, Revenue and Disaster Management Department. The petitioner, along with other employees, applied for the post. As the petitioner was found suitable, he was duly selected and recruited to ORS Group-B. On being appointed in ORS Group-B by way of promotion against the Recruitment Year 2012, he was posted as Assistant Collector, Koraput, pursuant to which he joined in his new assignment and discharged his duty. While so continuing, he was transferred and posted as Additional Tahasildar, Sorada in the district of Ganjam, where he joined and was continuing. At that stage, the opposite party no. 1 reverted the petitioner to his parent post on the basis of recommendation by the Review Selection Committee held in pursuance of the orders of the Odisha Administrative Tribunal passed in O.A. No. 2595 of 2014 and other similar cases. Aggrieved thereby, the petitioner filed O.A. No. 913 (C) of 2017 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack and on abolition of the tribunal, the said Original Application was transferred to this Court, by virtue of order dated 31.10.2019 passed by a Division Bench of this Court in W.P.(C) No. 20359 of 2019, and registered as above. 3. Mr. S. Mohanty, learned counsel for the petitioner contended that a perusal of the notification dated 10.04.2017 at Annexure-3 would go to show that the petitioner, who was working as ORS Group-B officer on being promoted in terms of Rule-4(b) of Odisha Revenue Service Group ‘B’ (Recruitment) Rules, 2011 against the Recruitment Year, 2012, has been reverted to his parent post, as per recommendation of the Review Selection Committee held in pursuance of orders of the Odisha Administrative Tribunal passed in O.A. No. 2595 of 2014 and other similar cases. It is further contended that the petitioner was not a party to the said Original Applications and, as such, the impugned order of reversion has been passed without complying the principles of natural justice and without giving opportunity of hearing to the petitioner, particularly when there was no allegation against the petitioner so as to pass an order of reversion. 4. Mr. M. Balabantaray, learned Standing Counsel for the State contended that since the tribunal has directed that the persons having less merits than the applicants before it having been selected and given promotion, they should be reverted and benefit should be extended to the applicants before it and consequentially the order impugned has been passed reverting the persons who had been considered less meritorious than the applicants in the Original Applications. Therefore, no illegality or irregularity has been committed by the authority so as to warrant interference by this Court. As a result, the writ petition does not merit consideration and the same is liable to be dismissed. 5. This Court heard Mr. S. Mohanty, learned counsel for the petitioner and Mr. M. Balabantaray, learned Standing Counsel appearing for the State opposite parties by hybrid mode. Perused the records and with the consent of the parties, the matter is being disposed of finally at the stage of admission. 6. On the basis of the undisputed facts and rival contentions raised by learned counsel for the parties, it is emerged that admittedly the petitioner was working as Senior Clerk in the Collectorate of Nabarangpur and he, having got outstanding CCRs which have been placed on record as Annexure-7, was given promotion and appointed as ORS Group-B Officer in terms of Rule-4(b) of Odisha Revenue Service Group ‘B’ (Recruitment) Rules, 2011 against the Recruitment Year, 2012. There is an entry in the CCR for the year 2009-2010 “Extraordinary. A perfect Confidential Assistant.” In the counter affidavit, it is contended that since there was no specific rating according to the ratings determined in the modalities for selection of ORS officers, the same was not taken into consideration. Since the Collector has given the endorsement in the CCR, it is not expected on the part of the petitioner to know the same. More so, all other Collectors having given ‘outstanding’ ratings, basing upon the same the petitioner was given promotion and, as such, he was discharging the duty as Additional Tahasildar, Sorada. Since the Collector has given the endorsement in the CCR, it is not expected on the part of the petitioner to know the same. More so, all other Collectors having given ‘outstanding’ ratings, basing upon the same the petitioner was given promotion and, as such, he was discharging the duty as Additional Tahasildar, Sorada. Therefore, because of the order passed by the tribunal in O.A. No. 2595 of 2014, the petitioner should not have been reverted to the parent post without following due procedure and without applying the principles of natural justice. More so, he was not a party to the main Original Application. 7. The soul of natural justice is “fair play in action.” In HK (An Infant) in re, 1967 1 All ER 226 (DC), Lord Parker, C.J. preferred to describe natural justice as “a duty to act fairly.” In Fairmount Investments Ltd. vs. Secretary of State for Environment, 1976 (2) All ER 865 (HL), Lord Russel of Killowen somewhat picturesquely described natural justice as “a fair crack of the whip.” In R. vs. Secretary of State for Home Affairs, Ex p. Hosenball, Geoffrey Lane, 1977 (3) All ER 452 (DC & CA), preferred the homely phrase ‘common fairness’ in defining natural justice. 8. A.K. Kraipak and Others vs. Union of India, AIR 1970 SC 150 : (1969) 2 SCC 262 , is a landmark in the growth of this doctrine. Speaking for the Constitution Bench, Hegde, J. observed thus: “If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have far reaching effect than a decision in a quasi-judicial enquiry.” In Maneka Gandhi vs. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 , law has done further blooming of this concept. This decision has established beyond doubt that even in an administrative proceeding involving civil consequences doctrine of natural justice must be held to be applicable. 9. This decision has established beyond doubt that even in an administrative proceeding involving civil consequences doctrine of natural justice must be held to be applicable. 9. In Swadeshi Cotton Mills vs. Union of India, AIR 1981 SC 818 , the meaning of ‘natural justice’ came for consideration before the apex Court and the apex Court observed as follows:- “The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formula. Historically “natural justice” has been used in a way “which implies the existence of moral principles of self evident and unarguable truth.” “Natural justice” by Paul Jackson, 2nd Ed. Page-1. In course of time, judges nurtured in the traditions of British jurispruduence, often invoked it in conjuction with a reference to “equity and good conscience.” Legal experts of earlier generations did not draw any distinction between “natural justice” and “natural law.” “Natural justice” was considered as “that part of natural law which relates to the administration of justice.” 10. In Basudeo Tiwary vs. Sido Kanhu University and Others, (1998) 8 SCC 194 , the apex Court held that natural justice is an antithesis of arbitrariness. It, therefore, follows that audi alteram partem, which is facet of natural justice is a requirement of Article 14. 11. In Nagarjuna Construction Company Limited vs. Government of Andhra Pradesh, (2008) 16 SCC 276 , the apex Court held as follows: “The rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Thus, whenever a man’s rights are affected by decisions taken under statutory powers, the court would presume the existence of a duty to observe the rules of natural justice. It is important to note in this context the normal rule that whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principles of natural justice, but in that event, the validity of that rule may fall for consideration.” 12. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principles of natural justice, but in that event, the validity of that rule may fall for consideration.” 12. The apex Court in Uma Nath Panday and Others vs. State of U.P. and Others, AIR 2009 SC 2375 , held that natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. 13. Natural justice, another name of which is common sense justice, is the name of those principles which constitute the minimum requirement of justice and without adherence to which justice would be a travesty. Natural justice accordingly stands for that “fundamental quality of fairness which being adopted, justice not only be done but also appears to be done.” 14. Reverting back to the factual matrix of the present case, the petitioner in Para-5 of the writ petition has specifically pleaded as follows:- “5. That it is n admitted fact that the petitioner was/is not a party to the case which has been reflected in the impugned order. The petitioner has also no knowledge about that case. The law is well settled that an employee shall not be punished without giving him any opportunity of hearing.” Though a counter affidavit has been filed on behalf of opposite party no. 2, but no reply controverting such assertion has been given, as would be evident from para-5 and 6 of the counter affidavit. In absence of specific denial to such averments made by the petitioner, it is admitted that no opportunity of hearing was given to the petitioner by the opposite parties. 15. While entertaining the Original Application, Odisha Administrative Tribunal, Cuttack Bench, Cuttack passed an interim order on 13.04.2017 to the following effect:- “Learned counsel for the applicant submitted copy of the order dated 12.4.2017 in OA No. 924 (C)/2017 passed by a division bench of this Tribunal and submitted that in the said OA it has been directed to maintain status quo of the applicant. As the present case is identical in nature, similar order may be passed. As the present case is identical in nature, similar order may be passed. Considering the submission, issue notice on admission and list this matter along with all other similar cases in the 1st week of May, 2017 and till then status quo of the applicant as on date be maintained.” Pursuant to such interim order, the petitioner is continuing as ORS Group-B Officer and the order of reversion passed in Annexure-3, so far as it relates to the petitioner, has not been given effect to. 16. Therefore, in view of the principles of law laid down by the apex Court, as referred to above, this Court is of the considered view that the impugned order of reversion in Annexure-3 dated 10.04.2017, so far as it relates to the petitioner, cannot sustain in the eye of law and the same is liable to be quashed and hereby quashed. The matter is remitted back to the authority concerned to reconsider the same and pass appropriate order by affording opportunity of hearing to the petitioner in compliance of the principles of natural justice. 17. The writ petition thus stands disposed of. However, there shall be no order as to costs. 18. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a print out of the order available in the High Courts website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed, vide Courts Notice No. 4587 dated 25th March, 2020, as modified by Courts Notice No. 4798 dated 15th April, 2021.