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Judgment
The petitioner in W.P.(C) No.2050 of 2003 was appointed as a Jr. Assistant in Utkal University on 16.12.1987 in the scale of pay of Rs.780-
1160/- with usual D.A. and other allowances as admissible to the post, pursuant to which he joined on 17.12.1987. He was confirmed in the said
post of Jr. Assistant as per office order no.2477 dated 21.02.1991 w.e.f. 17.12.1989. The petitioner in W.P.(C) No.2051 of 2003 was
appointed as a Jr. Assistant in Utkal University on 16.12.1987 in the scale of pay of Rs.780-1160/- with usual D.A. and other allowances as
admissible to the post, pursuant to which he joined on 18.12.1987. He was confirmed in the said post of Jr. Assistant as per office order no.2477
dated 21.02.1991 w.e.f. 18.12.1989. The petitioner in W.P.(C) No.2052 of 2003 was appointed as a Jr. Assistant in Utkal University on
25.01.1986 in the scale of pay of Rs.780-1160/- with usual D.A. and other allowances as admissible to the post, pursuant to which she joined on
27.01.1986. She was confirmed in the said post of Jr. Assistant as per office order no.87 dated 27.10.1988 w.e.f. 25.03.1988. While the
petitioners were so continuing, the Syndicate of the University taking into consideration the increase of work load in different departments, in its
meeting held on 14.12.1994, upgraded 22 posts of Jr. Assistant to that of Sr. Assistant on the basis of the recommendation of the Sub-Committee
constituted by it on 17.11.1994. Such decision was in consonance with Section 10 of the Orissa Universities Act, 1989. Consequentially, the
posts of the petitioners were upgraded to Sr. Assistant, vide office order dated 18.03.1996, in the scale of pay of Rs.1400-40-EB-50- 2300/-
with usual D.A. and other allowances, pursuant to which the petitioners in W.P.(C) Nos.2050 and 2052 of 2003 were joined on the very same
day, i.e., 18.03.1996, whereas petitioner in W.P.(C) No. 2051 of 2003 was joined on 17.04.1996, and they were allowed annual increments
admissible to the posts from time to time. On the basis of the revision of scale of pay w.e.f. 01.01.1996, the scale of pay of the petitioners was
also revised to Rs.3050-4590/- in the scale of pay of Jr. Assistant and thereafter they were allowed to draw the Sr. Assistant scale of pay of
Rs.4750-7500/- with usual D.A. and other allowances pursuant to order dated 15.09.2001. While they were so continuing, the upgradation
orders issued on 18.03.1996 and 17.04.1996 were withdrawn by the authority, vide office order dated 12.01.2001, but the salary, which was
paid for the post of Sr. Assistant during that upgradation period from 18.03.1996 to 12.01.2001 and 17.04.1996 to 12.01.2001, though was
calculated and about to be recovered, was kept in abeyance vide office order dated 10.12.2001. Thereafter, the petitioners were regularly
promoted to the post of Sr. Assistant, w.e.f. 15.09.2001 and are getting the scale of pay of Rs.4750-7500/- along with usual D.A. and other
allowances and also increments admissible to the post till date.
All the three writ petitions, having similar cause of action, have been heard together and are disposed of by this common judgment.
In all the three writ petitions, similar prayer has been made, which is reproduced below:-
i) issue a writ of certiorari or any other appropriate writ or order quashing Annexure-5, 6 and 8 as illegal;
ii) issue a writ of mandamus or any other appropriate writ or direction/order directing the opposite party to promote the petitioner to the post of
Senior Assistant w.e.f. 14.12.1994 when his immediate Junior Shri B.K. Nayak (S.C.) at Sl.No.198 of the seniority list was so promoted.
In view of the prayer made before this Court, it appears that the petitioners have filed these applications challenging withdrawal of upgradation
of the post of Jr. Assistant to Sr. Assistant made in their favour vide office order dated 18.03.1996 and 17.04.1996, pursuant to office order
dated 12.01.2001 in Annexure-5; consequential fixation of scale of pay as Jr. Assistant pursuant to office order dated 30.08.2001 in Annexure-6;
and steps taken pursuant to office order dated 10.12.2001 towards recovery of excess payment made for the period from 18.03.1996 to
15.09.2001 and 17.04.1996 to 15.09.2001 and direction given to wait for recovery of the salary for the time being until further orders as
approved by the Vice-Chancellor and also consequential fixation of their seniority over and above Sri B.K. Nayak (S.C.) against serial no.198.
Sri D.K. Sahoo-1, learned counsel for the petitioners in course of argument abandoned the prayer for granting promotion w.e.f. 14.12.1994 as
Sr. Assistant over and above Sri B.K Nayak (S.C.) and confined the prayer only to allow the petitioners to continue as Senior Assistant pursuant
to the upgradation of post and subsequently regular promotion granted to them. He further contended that the calculation made for recovery of the
amount should not be given effect to and rather they should have been allowed to continue with the benefits as admissible to the post held by each
of the petitioners. It is contended that when the petitioners were continued as Jr. Assistant pursuant to the decision taken by the Syndicate and the
same having been upgraded, the benefit of scale of pay to the post of Sr. Assistant having been extended and they have been discharging higher
responsibility, subsequently such upgradation order could not have been withdrawn without affording any opportunity of hearing and without
complying the principles of natural justice and without assigning any reason and more so, the steps taken for calculating the amount for recovery
cannot also sustain in the eye of law. It is further urged that for the period from 18.03.1996 to 12.01.2001 since the petitioners have discharged
their duty in the higher post by way of upgradation of Jr. Assistant to Sr. Assistant and received the scale of pay admissible to the post, the same
could not have been decided to be withdrawn and, therefore, the Vice-Chancellor has directed not to recover the amount and wait for recovery of
the salary for the time being until further orders. It is also contended that no recovery has been made till date and more so this Court vide order
dated 18.04.2003 passed interim order to the extent that there would be interim stay of recovery of the amount, if not already recovered.
Mr. K.P. Nanda, learned counsel for opposite party University also admitted the fact narrated above and stated that pursuant to the decision
taken by the Syndicate the posts of the petitioners have been upgraded from Jr. Assistant to Sr. Assistant on the basis of the work load available
which is permissible under Section 10 of the Universities Act. But when the State Government did not approve such upgradation, the upgradation
orders passed on 18.03.1996 and 17.04.1996 have been withdrawn by order dated 12.01.2001. In the counter affidavit it is specifically stated
that due to non-grant of approval by the State Government, the orders of upgradation have been withdrawn. Thereby, no illegality or irregularity
has been committed by the authority concerned by passing such orders, which do not warrant any interference by this Court at this stage.
Though there are other private opposite parties, it appears that none have entered appearance despite valid service of notice. But they have
addressed letters dated 15.02.2016 to the Court, which have formed part of the record, stating inter alia that they have already been given
promotion following the principles of the ORV Act.
This Court has heard Mr. D.K. Sahoo-1, learned counsel for the petitioners and Mr. K.P. Nanda, learned counsel for the contesting opposite
party-Utkal University. Pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this matter is
being disposed of finally at the stage of admission.
The undisputed fact being that the petitioners were appointed as Jr. Assistant and while they were continuing in the said post, pursuant to the
decision taken by the Syndicate, their posts have been upgraded w.e.f. 18.03.1996 and 17.04.1996 respectively, which is permissible under
Section 10 of the Orissa University Act. Due to such upgradation, the petitioners have been discharging their duty in upgraded post as Sr.
Assistant and they have been allowed to draw the scale of pay admissible to the said post and as such they have also been allowed to draw the
revised scale of pay w.e.f. 01.01.1996 as Jr. Assistant and subsequently in the post of Sr. Assistant. For ready reference, the upgradation order
dated 18.03.1996 is reproduced below:
OFFICE ORDER NO. ESTT.II/35/5155/96, Dated. 18.3.96.
In pursuance of the orders passed by the Vice-Chancellor, the following senior Assistants, who were promoted vide this office order
No. Estt. II/35/24014/94 dated 26.12.94, against the Upgraded posts of Senior Assistants are adjusted in the Substantive posts of
Senior Assistants with effect from 18.03.1996 until further orders.
Bishnu Prasad Behera
Ranjit Kumar Mohanty
REGISTRAR
OFFICE ORDER NO. ESTT. II/35/5156/96 Dated 18.3.96
In pursuance of the orders passed by the Vice-Chancellor, on recommendation of D.P.C., the following Junior Assistants are
temporarily promoted to the upgraded posts of Seniority of others, in the scale of pay of Rs. 1400-40-1800-EB-50-2300/- with
usual D.A. and other allowances as admissible under the rules of the University from time to time from the date of their joining in the
post until further orders.
Smt. Pankajini Panigrahi
Sri Bisnnumohan Chhotaray
REGISTRAR
Dt. 18.3.96
Office order No.. ESTT.II/35/7191/96, Dated. 17.04.96.
In pursuance of the orders passed by the Vice-Chancellor, Sri Bichitra Kumar Mishra, who was promoted vide this offie order
No.Estt-II//35/24014/94, dated 26.12.1994 against the upgraded post of Senior Assistant is adjusted in the substantive post of
Senior Assistant with effect from 02.04.1996 until further orders.
REGISTRAR
Office order No.. ESTT.II/35/7192/96, Dated. 17.04.96.
In pursuance of the orders passed by the Vice-Chancellor on the recommendation of D.P.C. Sri Biswanath baral, Junior Assistant
is temporaily promoted to the upgraded post of Senior Assistant without prejudice to the seniority of others, in the scale of pay of
Rs.1400-40-1800-EB-50-2300/- with usual D.A. and other allowances as admissible under the rules of the University from time to
time from the date he joins the post, until further orders.
REGISTRAR
On perusal of aforementioned order, it clearly indicates that the petitioners have been promoted against the upgraded post of Sr. Assistant and
adjusted in substantive post w.e.f. 18.03.1996 and 17.04.1996 until further orders. As a consequence thereof, they have been allowed to continue
in the promotional post of Sr. Assistant which has been upgraded by the authority concerned. But, vide order dated 12.01.2001, the upgraded
order has been withdrawn which reads as under:
OFFICE ORDER
No. Estt.II/2220/2001.
Dated 12.1.2001
In pursuance of the decision of the syndicate, dated 24.9.99, office orders No. Estt. II/35/5166/96, Dtd. 18.3.96,
Estt.II/35/7192/96, dt. 17.4.96, Estt.II/35/17673/96, dt. 26.8.96, and Estt.II/35/23938/96, dt. 4.10.96 temporarily promotions of
the following junior Assistants to the post of Senior Assistants on upgraded basis are hereby withdrawn.
Smt. Pankajini Panigrahi
Sri Bishnumohan Chhottaray
Sri Biswanath Baral
Sri Ashok Kumar Ray
Sri Saroj Kumar Pradhan
Sri Devi Prasanna Tripathy.
By order of the Vice-Chancellor
Sd/- Illegible
12.1.2001.
REGISTRAR.
While withdrawing the upgradtion orders on 12. 01.2001, it appears that no opportunity of hearing has been given nor has there been
compliance of principle of natural justice and, as such, no reason has also been given as to why the upgraded posts have been withdrawn by the
authority concerned. The petitioners, being aggrieved by such action of the authority, have approached this Court by filing these writ petitions and
this Court while entertaining the application issued notice to the opposite parties and in response to the same, a counter affidavit has been filed by
the contesting opposite party-University. In paragraphs-3 and 4 of the said counter affidavit, it is stated as follows:-
That in reply to Paragraphs 1 to 13 of the writ petition, it is humbly submitted that the averments made by the petitioner is not correct. Due to
work load in the different P.G. Departments of the University, the Syndicate in its meeting dt. 14.12.1994 resolved that 22 posts of Junior Asst.
working in different P.G. Teaching Departments be upgraded to Senior Assistants without creation of extra post either at higher or lower level.
Further the Syndicate in its subsequent meeting dt. 21.3.1995 resolved that 2 Senior Typists be also inducted as Senior Assistants and payment to
all those 24 upgraded employees shall be made after approval of the State Govt. and Chancellor. Accordingly Utkal University authorities
promoted 22 Junior Assistants to the upgraded post of Senior Assistants and inducted two Senior Typists to the post of upgraded Senior Asst. in
anticipation of the approval to the Chancellor and State Govt. Since power to create post in the University is vested with the State Govt. so the
University moved the Govt. vide office letter No. Estt.II/695/12758/96 DT. 22.6.1996 for approval of these 24 upgraded Senior Assistant posts.
That it is humbly submitted that the proposal of the University dt. 22.6.1996 was not accepted by the State Govt. and Hon''ble Chancellor. On
the other hand Hon''ble Chancellor appointed Commission of Inquiry headed by Sri T.K. Mishra. The Commission of Inquiry submitted his report
recommending to withdraw such promotion which have been given beyond the sanctioned strength. Accordingly Hon''ble Chancellor directed the
University to withdraw the promotion made beyond the sanctioned strength. Accordingly the Syndicate of the University in its meeting dt.
24.9.1999 resolved that the promotion given to the 24 employees of the University beyond the sanctioned strength without prior approval of the
Hon''le Chancellor and the State Govt. should be withdrawn. In pursuant to the decision of the Syndicate dt. 24.9.1999 and direction of the
Hon''ble Chancellor, the promotion granted to the writ petitioner was withdrawn and Annx-5 is the order of the University dt. 12.1.2001 i.e. the
withdrawal order.
It appears that for the first time in the counter affidavit it has been explained that 22 posts of Jr. Assistant have been upgraded to Sr. Assistant
by the University in anticipation of approval of the Chancellor and State Government. It is further stated in the counter affidavit that since power to
create post in the University is vested with the State Government, the University moved the State Government vide office letter dated 22.06.1996
for approval, but no approval was received. Further, pursuant to appointment of Commission of Inquiry and its report recommending to withdraw
such promotion, which has been beyond the sanction strength, the order of withdrawal dated 12.01.2001 was passed. The reason which has been
assigned in the counter affidavit is not made available in the orders impugned itself and, as such, on perusal of orders dated 18.03.1996 and
17.04.1996, the upgradation of post has been made without any condition, meaning thereby the orders do not reflect that such upgradation was
subject to approval of the State Government as well as Chancellor. Similarly, Annexure-5, the order of withdrawal of such upgradation, has also
been passed without assigning any reason. More so, no opportunity of hearing was given to the petitioners nor was there any compliance of
principle of natural justice, which is required in law. Reason being, by upgradation of the post from Jr. Assistant to Sr. Assistant, the petitioners
have acquired a right to continue against the post. If at all the authority wants to withdraw the said orders of upgradation, then the right which has
been accrued in favour of the petitioners to continue against the said post being affected, therefore, it requires an opportunity of hearing in
compliance of the principles of natural justice. The consequential decision taken on 10.12.2001 in Annexure-8 to recover the amount having been
directed to wait until further orders which has got approval of the Vice-Chancellor and also by virtue of the interim order passed by this Court on
18.04.2003, since the amount has not been recovered till date and, as such, in the meantime the petitioners have been promoted to the regular
posts against the substantive vacancies of Sr. Assistant w.e.f. 15.09.2001, now the only question remains to be considered that for the period from
12.01.2001 to 15.09.2001 and 17.04.1996 to 15.09.2001 whether the petitioners are entitled to get the benefit in the post of Sr. Assistant or not.
In Mahipal Singh Tomar v. State of Uttar Pradsh, 2013 (12) SCALE 30 4, the apex Court held that in administrative law, the ''rules of natural
justice'' have traditionally been regarded as comprising ''audi alteram partem'' and ''nemo judex in causa sua''. The first of these rules requires the
maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation.
The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first
principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing
extends to the right to have notice of the other side''s case, the right to bring evidence and the right to argue. This has been used by the Courts for
nullifying administrative actions. The premise on which the Courts extended their jurisdiction against the administrative action was that the duty to
give every victim a fair hearing was as much a principle of good administration as of good legal procedure.
In view of the law laid down by the apex Court, the order dated 12.01.2001 withdrawal of the upgradation from Jr. Assistant to Sr. Assistant
has been passed without assigning any reason and as such without complying the provisions of natural justice and without affording opportunity of
hearing to the affected parties.
The apex Court in State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held that if there is power to decide and determine to the
prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the
prejudice of a person is made, the order is a nullity. Similar view has also been taken in A.K. Kraipak v. Union of India, AIR 1970 SC 150, A.R.
Antulay v. R.S. Nayak, (1988) 2 SCC 602, R.B. Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (I.T. & W.T.),
AIR 1989 SC 1038. Thus, even though the said provision may not provide for notice to be given to the party affected before issuance of any
order, but the same has to be read down in the said provision. In Smt. Menaka Gandhi v. Union of India, AIR 1978 SC 597, the Constitution
Bench of the apex Court held as follows:-
Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the
omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of
natural justice.
Similar view has also been taken by this Court in Bijay Kumar Paikaray v. State of Odisha and others, 2017 (I) ILR -CUT- 252 : 2017 (I) OLR-
439.
""Nihil quod est contra rationem est licitum"" means as follows:
nothing is permitted which is contrary to reason. It is the life of the law. Law is nothing but experience developed by reason and applied
continually to further experience. What is inconsistent with and contrary to reason is not permitted in law and reason alone can make the laws
obligatory and lasting.
Therefore, recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is pertinent to note that
a decision is apt to be better if the reasons for it are set out in writing because the reasons are then more likely to have been properly thought out.
It is vital for the purpose of showing a person that he is receiving justice.
In Re: Racal Communications Ltd. (1980)2 All ER 634 (HL), it has been held that the giving of reasons facilitates the detection of errors of
law by the court. In Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All E.R. 694, it has been held that a failure to give reasons
may permit the Court to infer that the decision was reached by the reasons of an error in law.
In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain
conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely
administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt
support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts
on record. It is vital for the purpose of showing a person that he is receiving justice. Similar view has also been taken in Uma Charan v. State of
Madhya Pradesh, AIR 1981 SC 1915.
The order dated 12.01.2001, having been passed without any reason and without complying the principles of natural justice, cannot be
sustained in the eye of law. But, subsequently, to justify the action taken by the opposite party- University, in the counter affidavit though reasons
have been assigned stating that due to non-approval of the State Government such order impugned has been passed, the same cannot be tenable in
the eye of law.
The apex Court in Gordhandas Bhanji, AIR 1952 SC 16 held as follows:
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer
making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to
have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself.
The Constitution Bench of the apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851, the
apex Court held :
.. when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court
on account of a challenge, get validated by additional grounds later brought out. Orders are not like old wine becoming better as they grow old.
In view of the law laid down by the apex Court, as discussed above, and applying the same to the present context, it is made clear that while
upgrading the post from Jr. Assistant to Sr. Assistant, no condition has been stipulated therein stating that such upgradation was subject to
approval by the State Government or the Chancellor. In absence of any condition stipulated therein, the order dated 12.01.2001 withdrawing such
upgradation, without assigning any reason and without giving opportunity of hearing, violates the principles of natural justice. Thereby, the order in
Annexure-5 dated 12.01.2001 withdrawing the upgradation of Jr. Assistant to Sr. Assistant cannot sustain in the eye of law. Accordingly, the
same is hereby quashed. As regards the consequential determination of recovery of the salary paid to the petitioners in upgraded post, though
steps have been taken for recovery but by virtue of the order passed by the Vice-Chancellor as well as this Court, the same, having not been
recovered, cannot be recovered as the petitioners have discharged their duty in the higher post of Sr. Assistant and are entitled to get the scale of
pay admissible to the said post. Consequentially, the orders dated 30.08.2001 in Annexure-6 and dated 10.12.2001 in Annexure-8 are hereby
quashed.
The opposite party no.1 has filed a memo on 19.11.2014 incorporating the circular dated 14.08.2013 and the final gradation list of Sr.
Assistant as on 01.03.2013 after implementation of catch up rules in accordance with the decision taken by the Syndicate on 13.02.2013, the
same having not been challenged, the fixation of seniority remains as it is, in which this Court is not inclined to interfere or make any observation to
that effect. As such, the petitioners do not want to press their prayer, with regard to fixation of seniority, made in their writ petitions.
The writ petitions are accordingly allowed to the extent indicated above. No order to costs.