Nihar Ranjan Tripathy Vs State of Odisha

stenographer in Orissa Human Rights Commission, has filed this writ petition seeking to quash Annexure-10 dated 21.06.2017 issued by the Senior Audit Officer/GSA (V) in the office of the Accountant General (G&SSA), Odisha, Bhubaneswar with an observation that absorption of the petitioner is irregular as he was not appointed according to the relevant rules or in adherence to Articles 14 and 16 of the Constitution of India; and consequential office order dated 13.07.2017 at Annexure-11 issued by Deputy Secretary, Odisha Human Rights Commission withdrawing the annual periodical increment sanctioned w.e.f. 01.11.2016 and directing the petitioner to make repayment of an amount of Rs.4264/- by depositing the same by way of treasury challan in appropriate government head within a fortnight otherwise action shall be taken for such recovery as per rules.

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The factual matrix of the case, in hand, is that Odisha Human Rights Commission (in short “OHRC”) was established in the year 2003 in exercise of the power

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conferred under Section 21 of the Protection of Human Rights Act, 1993. It being an autonomous body regulated by its own rules and regulations and the State Government provided funds for establishment and payment of salary to its employees. A post of junior stenographer was created in the OHRC on 24.04.2003 with administrative approval of the Law Department of Government of Odisha. Instead of filling up of the post either by direct recruitment or by transfer on deputation basis, on a plain paper application submitted by the petitioner and by conducting a formal interview, he was appointed for a period of one year as junior stenographer, vide order dated 29.08.2003, with monthly consolidated remuneration of Rs.3000/- per month. Although the service of the petitioner was temporary in nature, owing to need of his services, the same was extended from time to time uninterruptedly till 2013.

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2.1 In exercise of powers conferred by the subsection (1) read with clause (b) of sub-section (2) of Section 41 of the Protection of Human Rights Act, 1993, the State

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Government framed a set of Rules regulating the method of recruitment and conditions of service of the officers and other staff of the Odisha Human Rights Commission called “Odisha Human Rights Commission (Method of Recruitment and Conditions of Service of Officers and other Staff) Rules, 2012 (for short “OHRC Rules, 2012”). In the year 2013, a selection committee was constituted to consider regularization of service of persons like the petitioner. By decision dated 13.11.2013 of the selection committee, the service of the petitioner was regularized in the scale of pay of Rs.520020200/- with grade pay of Rs.1900, which was communicated vide office order dated 16.11.2013. According to the fixation of pay, the petitioner was also allowed to draw periodical increments on 01.11.2014, 01.11.2015 and 01.11.2016. Such absorption of the petitioner was made referring to Rule 8 of OHRC Rules, 2012. By the time the petitioner was absorbed in OHRC on 16.11.2013, the petitioner was doing stenography work in the OHRC as an outsider on annual contract basis and was receiving consolidated payment every

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month as per the terms and conditions of the contract,

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though the contract does not stipulate that the petitioner would be absorbed in future against the regular post of junior stenographer.

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2.2 While conducting audit, the auditors observed in para-20(A) of the inspection report no.03/2014-15 that absorption of the petitioner in OHRC was irregular and was not in consonance with Rule-8 of OHRC Rules, 2012 and, as such, Rule-8 has not been relaxed by the State Government in exercise of powers conferred under Rule-11 on regular absorption in Group-C government service. Thereby, basing upon the observation made in para-20(A) of the inspection report no.03/2014-15 vide Annexure-10 dated 21.06.2017 issued by opposite party no.3, the order dated 13.07.2017 in Annexure-11 was issued stating that the appointment/ absorption of the petitioner having been considered to be irregular, he was liable for repayment of the excess amount of remuneration as raised in para-20(B) and, as such, he was not entitled to accrue further annual increment in normal

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circumstances as sanctioned w.e.f. 01.11.2016 vide office order no.8009/OHRC dated 23.05.2017. Thereby, the petitioner was called upon to make repayment of an amount of Rs.4264/- by way of treasury challan in the appropriate government head within a fortnight and accordingly office order no.8009/OHRC dated 23.05.2017 sanctioning annual periodical increment in favour of the petitioner w.e.f. 01.11.2016 was withdrawn. Hence this application.

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Mr. D.K. Sahoo-I, learned counsel for the

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petitioner strenuously urged before this Court that though the petitioner was initially appointed on contract basis, but considering his performance his contractual appointment was extended till 2013 and by constituting the selection committee, pursuant to Rule-6 of the OHRC Rules, 2012, the petitioner was absorbed on regular basis against a regular vacancy of junior stenographer in the pay scale of Rs.520020200/- with Grade Pay of Rs.1900/-, vide office order dated 16.11.2013, and subsequently he was allowed to draw annual periodical increment w.e.f. 01.11.2014. But, on the basis of

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the audit observation, the OHRC passed office order dated 13.07.2017 stating that the appointment and absorption of the petitioner having been considered as irregular, the petitioner is liable for repayment of the excess amount of remuneration as raised in Para-20(B) and is not entitled to accrue further annual increment in normal circumstances as sanctioned w.e.f. 01.11.2016, vide office order no.8009/OHRC dated 23.05.2017. Therefore, he was directed to make repayment of an amount of Rs.4264/- by depositing the same by way of treasury challan in the appropriate government head within a fortnight of receipt of the order, otherwise necessary action shall be taken against him for such recovery as per rules. It is contended that such order dated 13.07.2017 for repayment has been passed in gross violation of the principle of natural justice, as no opportunity of hearing was given to the petitioner while withdrawing the periodical increment granted to the petitioner pursuant to office order dated 23.05.2017 giving effect from 01.11.2016.

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Thereby, the order so issued cannot sustain in the eye of law.

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It is further contended that the audit

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observation made by the office of the Accountant General, Odisha in Annexure-10 dated 21.06.2017 at para no.20(A) of inspection report no.03-2014-15, on the basis of which the office order was issued on 13.07.2017, also cannot sustain as observation made in the audit report was not substantiated giving opportunity of hearing to the petitioner. Therefore, seeks for quashing of the letter dated 21.06.2017 in Annexure-10 issued by the Office of the Accountant General, Odisha, as well as the consequential office order dated 13.07.2017 in Annexure-11 issued by the OHRC.

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Mr. B. Senapati, learned Additional Government Advocate appearing for opposite party no.1 contended that the petitioner being an employee of the OHRC, the State has no role to play with regard to his engagement and consequential absorption thereof, and the action taken pursuant to audit observation is in accordance with law. As such, no counter affidavit has been filed by the State Government for the aforesaid reasons.

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Mr. A.K. Mohapatra, learned counsel appearing

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for opposite party no.2-OHRC, basing on the counter affidavit, admitted the fact that the petitioner, by submitting a plain paper application and on conducting a formal interview, was appointed as a junior stenographer with monthly consolidated remuneration of Rs.3,000/-, vide OHRC order dated 29.08.2003, and that service of the petitioner was temporary in nature and was extended from time to time uninterruptedly till 2013 owing to need. After the enactment of the OHRC Rules, 2012, a selection committee was constituted to consider regularization of service of persons like the petitioner. Accordingly, the selection committee decided on 13.11.2013 to regularize the service of the petitioner in the scale of pay of Rs.5200-20200/- with Grade Pay of Rs.1900/which was communicated vide office order no.19552/OHRC dated 16.11.2013. It is contended that keeping in view the administrative discipline and decorum correspondences were made with the Law Department, Govt. of Odisha and A.G., Odisha, Bhubaneswar and eventually the observation of the

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Finance Department, Govt. of Odisha communicated vide letter no.4355/L dated 24.04.2017 was sent to the A.G., Odisha, Bhubaneswar vide OHRC letter no.8947 dated 07.06.2017. The audit authorities have not taken into consideration the aforesaid letter issued by the OHRC, but, however, retained para no.20(A) & (B) of the inspection report no.03/2014-15/308 dated 21.06.2017. Thereby, the periodical increment sanctioned in favour of the petitioner was withdrawn and steps were taken for recovery of excess payment of Rs.4264/- vide OHRC office order no.11147 dated 13.07.2017. The entire steps have been taken in compliance of the observation made by the Accountant General, Odisha, which is mandatory in view of Rule-170 of S.R. of the Odisha Treasury Code. As such, the withdrawal of the increments has been done by opposite party no.2 basing on the undertaking dated 20.05.2017 of the petitioner. Thereby, no illegality or irregularity has been committed in passing the impugned order for recovery of the amount indicated above.

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Mr. V. Narsingh, learned counsel appearing for

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opposite party no.3 argued with emphasis that the petitioner, having been engaged on contractual basis with consolidated salary, cannot and could not have been absorbed on regular basis without following OHRC Rules, 2012, that is to say by issuing advertisement and following due recruitment process in accordance with law. Mere constitution of a selection committee cannot obliterate the provisions of OHRC Rules, 2012 to absorb the petitioner on regular basis in the post of junior stenographer Grade “C”. As such, the absorption of the petitioner has been stated to be made by following Rule-8 of OHRC Rules, 2012, but, on scrutiny of such Rules, it is made clear that the petitioner was neither appointed by way of direct recruitment nor transfer on deputation basis. As the petitioner was an outsider and his engagement was made on contractual basis and he received consolidated remuneration

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in every month as per terms and conditions of the contract, he should not have been absorbed against a regular post of junior stenographer without following OHRC Rules, 2012.

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Further, the terms of engagement of the petitioner, being on contractual basis, do not indicate that he would be absorbed in future against regular post of junior stenographer, and he being neither a direct recruitee from OHRC nor transferred from another government department, his absorption is per se illegal. Consequentially, while conducting audit the auditors observed that absorption of the petitioner in OHRC was irregular and not in consonance with Rule-8 of OHRC Rules, 2012 and as such, Rule-8 has not been relaxed by the State Government in exercise of power conferred under Rule-11 of OHRC Rules, 2012 in order to regulate absorption in Group “C” government service. Consequentially, the audit observation made in para-20(A) of inspection report no.03/2014-15 was retained vide impugned letter dated 21.06.2017 under Annexure-10. Thereby, no illegality or irregularity has been committed by opposite party no.3 as the appointment of the petitioner has been done de hors the rules. Therefore, seeks for dismissal of the writ petition.

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This Court heard Mr. D.K. Sahoo-1, learned

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counsel for the petitioner; Mr. B. Mr. B. Senapati, learned Addl. Government Advocate for opposite party no.1; Mr. A.K. Mohapatra, learned counsel for opposite party no.2; and Mr. V. Narasingh, learned counsel for opposite party no.3, by virtual mode. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.

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For just and proper adjudication of the case, relevant provisions of OHRC Rules, 2012 are quoted below:-

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“ 3. Officers and other staff of the State Commission — (1) The number of posts of officers and other staff of the State Commission shall be as specified in the Schedule:

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Provided that depending on work load, the number of posts of each category of post may be varied, from time to time, by the State Commission in consultation with the State Government.

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(2) In discharge of the functions under the Act by the officers and other staff referred to in Section 27 of the Act shall, while they are in the service of the State Commission, be subject to the exclusive administrative and disciplinary control of that Commission.

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4. Method of appointment and other qualification — (1) Subject to the provisions of these rules, appointment to different categories of posts shall be made either by direct recruitment which shall be by holding competitive examination or by promotion or by

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deputation of officers and employees from Government or from Judiciary, who is eligible for appointment to the post in the grade.

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(2) The direct recruitment to a post specified in the Schedule shall be held by a competitive examination to be conducted by the State Commission and it shall decide the standard, syllabus and subjects of examination and the manner of conduct of examination.

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(3) The number of officers and other staff of the State Commission, their classification, method of appointment, qualification and scale of pay attached thereto shall be as specified in the Schedule.

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5. Appointing Authority — (1) All appointments to the Group ‘A’ and ‘B’ Posts shall be made by the State Commission.

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(2) All appointments to the Group ‘C’ posts shall be made by the Registrar of the State Commission.

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(3) All appointments to Group ‘D’ posts shall be made by the Under-Secretary to the State Commission.

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6. Selection Committee — (1) The State Commission may constitute a Committee consisting of such number of members as may be decided by it for filling up of the posts in the State Commission.

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(2) The State Commission may constitute different committees for filling up different categories of posts.

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7. Eligibility —No persons shall be eligible for appointment to any post under the State Commission—

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(a) unless, he or she is citizen of India;

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(b) unless, he or she has passed a test in Odia equivalent to Middle School Standard;

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(c) if, he or she is dismissed from service by Government or by any Statutory or Local Authority;

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(d) if, he or she has been convicted of an offence involving moral turpitude;

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(e) unless, passed the minimum qualification prescribed for a post mentioned against each in Column (7) of the Schedule;

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(f) if, he or she has entered into or contracted a marriage with a person having a spouse living; and

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(g) if, he or she having a spouse living and has entered into or contracted marriage with any person:

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Provided that if the State Commission is satisfied that such married is permissible under the personal Law applicable to such person or there are other grounds for doing so, exempt any person from the operation of the rule.

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8. Absorption of existing employees — (1) Notwithstanding anything contained in the provisions of these rules, the persons holding posts in the State Commission on the date of commencement of these rules either on direct recruitment or transfer on deputation basis and who fulfill the qualifications and experience laid down in these rules and who are considered suitable by the Committee, shall be eligible for absorption in the respective grades subject to the condition that such persons obtain a no objection certificate from their parent department for their absorption in the State Commission.

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(2) The seniority of the officers and other employees mentioned in sub-rule (1) shall be determined with reference to the dates of their regular appointment to the post concerned.

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11. Power to relax —Where the State Government is of the opinion that it is necessary or expedient to do so, it may, by order, and for reasons to be recorded in writing, and in consultation with the State Commission, relax any of the provisions of these rules with respect to any class or category of person.”

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9. The constitutional changes resulting from the

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Government of India Act, 1935 made it necessary to revise the

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existing rules regarding treasury procedure, and the revised rules were issued as the Orissa Treasury Code in July, 1943. The Orissa Treasury Code consists of two volumes of which the first contains the text of the Code, and the second contains the appendices and forms. The first volume divided into three parts, i.e., Part-I-The Treasury Rules (Orissa), PartII, The subsidiary Rules under Treasury Rules (Orissa) and Part-III, Executive instructions. For just and proper adjudication of the case, Codes-170 and 171 are quoted

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below:-

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“ 170. Audit objections and recoveries—Every Government servant must attend promptly to all objections and orders communicated to him by the Account-General.

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171. When the Accountant General disallows a payment as unauthorised, the disbursing officer bound not only to recover the amount disallowed without listening to any objection or protest but to refuse to pay it in future till the Accountant-General authorises the payment to be resumed, that no warning slip has been received by the Government servant against whom the retrenchment has been ordered or that being received, it has been answered, are facts with which the disbursing officer shall have no concern.

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NOTE 1 —If a Government servant from whom a recovery is ordered, is transferred to the jurisdiction of another disbursing officer, the order of recovery should be passed on to that disbursing officer without delay.

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NOTE 2 —A disbursing officer, must not, when a retrenchment is ordered, enter into any correspondence with either the Accountant General or the Government servant concerned, it is his duty simply and promptly to carry out the orders has received to leave the person aggrieved to refer the case to Government through the proper channel.

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NOTE 3 —Representation and protests against retrenchments ordered by the Accountant - General may not ordinarily be considered by the administrative authorities, if submitted later than three months from after the date of receipt of the intimation by the aggrieved Government servant. This provision does not remove from the disbursing officer, the duty of enforcing immediately the recovery of a retrenchment order under this rule.

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NOTE 4 —When a Government servant is under suspension and is in receipt of subsistence grant, the retrenchment order so respect of any overpayment caused to him in the past, shall be issued by the Accountant-General in consultation with the authority competent to place the Government servant under suspension. The aforesaid administrative authority will exercise discretion whether recovery should held wholly in abeyance or it should be effected at full or reduced rates depending on the circumstances of each such cases.”

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In view of the aforesaid provision of the OHRC

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Rules, 2012, appointment to different categories of posts shall be made either by direct recruitment which shall be by

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holding competitive examination or by promotion or by deputation of officers and employees from Government or from judiciary, who is eligible for appointment to the post in

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the grade. Direct recruitment to a post specified in the schedule shall be held by a competitive examination to be conducted by the OHRC and it shall decide the standard, syllabus and subjects of examination and the manner of conduct of examination. Rule-5 stipulates about the appointing authority. As per Rule-6, the OHRC shall constitute a committee consisting of such number of members as may be decided by it for filling up of the posts in the State Commission. The eligibility criteria for appointment to any post under the OHRC are prescribed under Rule-7. So far as absorption of existing employees is concerned, provisions are made under Rule-8 and power to relax has also been provided under Rule-11. In view of the statutory provisions governing the field, necessary recruitment has to be made in accordance with OHRC Rules, 2012.

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Admittedly, a post of junior stenographer was created in OHRC on 24.04.2003 with the administrative approval of the Law Department of Government of Odisha. By the time the post was created, OHRC Rules, 2012 had not

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seen the light of the day. Instead of filling up of the post either by way of direct recruitment or transfer on deputation basis, OHRC vide office order no.26 dated 29.08.2003 engaged the petitioner as stenographer on contract basis for a period of one year on a fixed monthly pay of Rs.3000/- under Annexure-1 and the petitioner continued in service as stenographer as an outsider on contract basis till he was absorbed against a regular vacant post of junior stenographer under Group-C by letter dated 16.11.2013 under Annexure-3. While absorbing the petitioner as junior stenographer, reference was made to Rule-8 of Rules, 2012. On perusal of the said rule, it appears that persons holding posts in the OHRC on the date of commencement of the Rules, 2012 either on direct recruitment or transfer on deputation basis and who fulfill the qualifications and experience laid down in the Rules and who are considered suitable by the committee, shall be eligible for absorption in the respective grades subject to the condition that such persons obtain a no objection certificate

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from their parent department for their absorption in the OHRC.

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The petitioner was neither appointed on direct recruitment basis nor was he transferred on deputation basis from any other government organization to the OHRC, rather on consideration of a plain paper application and conducting a formal interview, he was engaged as stenographer with a consolidated remuneration of Rs.3000/- per month vide office order dated 29.08.2003. Thereby, the petitioner, being a rank outsider engaged on contractual basis and getting consolidated remuneration, cannot and could not be absorbed under Rule-8 of OHRC Rules, 2012. In other words, the entry of the petitioner in service was irregular one and not in accordance with the rules and thereby was a back door entrant to such service. More so, his recruitment to the post of junior stenographer under the OHRC was de hors the rules. Therefore, when the Accountant General, Odisha conducted audit in its inspection report no.03/2014-15, in para-20(A) made the following observation:-

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“Although OHRC is an autonomous body all the relevant Act/Rules/Regulations as well as instructions issued by the Government are applicable to this organization also. In the instant case, i.e., the absorption of Sri Nihar Ranjan Tripathy is irregular as he was not appointed according to the relevant rules or in adherence to Articles 14 and 16 of the Constitution of India and subsequently absorbed. Hence, the para is retained.”

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In view of such observation made by the Accountant General,

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Odisha, vide letter dated 21.06.2017 under Annexure-10, the consequential letter was issued by opposite party no.2-OHRC for repayment of amount of Rs. 4264/-, which had been paid to the petitioner in the shape of annual periodical increment, and pursuant to order dated 23.05.2017 sanctioning annual periodical increment granted in favour of the petitioner was withdrawn vide office order dated 13.07.2017 in Annexure-11.

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In M.P. State Coop. Bank Ltd. Bhopal v.

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Nanuram yadav , (2007) 8 SCC 264, the principles to be adopted in the matter of public appointments have been formulated by the Supreme Court to the following extent:-

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1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the

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open market would amount to breach of Arts. 14 & 16 of the Constitution of India.

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2) Regularisation cannot be a mode of appointment.

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3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.

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4) Those who come by back door should go through that door.

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5) No regularization is permissible in exercise of the statutory power conferred under article 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules.

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6) The Court should not exercise its jurisdiction on misplaced sympathy.

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7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.

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8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.”

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14. In Meera Massey v. S.R. Mehotra, (1998) 3 SCC

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88, the apex Court observed as under:-

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“If the laws and principles are eroded by such institutions it not only pollutes its functioning deteriorating its standard but also exhibits …………. wrong channel adopted………If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even limping society to its normalcy.”

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In Ram Chand v. Union of India, (1994) 1 SCC

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44, the apex Court held that the exercise of power should not

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be made against the spirit of the provisions of the statue; otherwise it would tend towards arbitrariness.

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15. In Ajit Singh (II) v. State of Punjab, (1999) 7 SCC

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209, a Constitution Bench of the Supreme Court held that any action being violative of Article 14 of the Constitution is arbitrary and if it is found to be de hors the statutory rules, the same cannot be enforced.

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Similar view has also been reiterated in Rashmi

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Mishra v. M.P. Public Service Commission , (2006) 12 SCC

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724; and Indian Drugs & Pharmaceuticals Ltd. v.

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Workmen Indian Drugs& Pharmaceuticals Ltd., (2007) 1 SCC 408.

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16. In State of Uttar Pradesh v. U.P. State Law Officers’ Association, (1994) 2 SCC 204, the Supreme Court held that those who come by back door should go through that door.

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Similar view has also been taken in State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65 wherein the apex Court held that the equality clause enshrined in article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit.

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17. In the above backdrop, it is the settled legal

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proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc., that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a

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course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in article 16 requires that every such appointment be made by an open advertisement so as to enable all eligible persons to compete on merit. (emphasis supplied)

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It is a settled legal proposition that appointment to

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any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.

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18. In Union Public Service Commission v. Girish

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Jayanti Lal Vaghela, AIR 2006 SC 1165, the Supreme Court held that the appointment to any post under the State can

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only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of article 16 of the Constitution of India.

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Therefore, it is evident that any appointment made without advertising the vacancy cannot be held to be in conformity with the mandate of Articles 14 and 16 of the Constitution of India and in a nullity.

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Similar view has also been taken in State of Karnataka v. Umadevi, (2006) 4 SCC 1; State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436; and State of Madhya Pradesh v. Ku. Sandya Tomar, (2013) 11 SCC 357.

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Considering the factual matrix of the case vis-à-vis the law discussed (supra), this Court is of the considered view that the engagement of the petitioner from the date of initial appointment on contractual basis is in gross violation of Articles 14 and 16 of the

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Constitution of India. More particularly, his absorption made against the post of junior stenographer even after commencement of OHRC Rules, 2012 is illegal and de hors the rules governing the field, as the same has not been done in conformity with the provisions of the rules governing the field. Therefore, audit observation made by the Accountant General, Odisha is well founded and the same has been acted upon by the opposite parties by issuing consequential letter under Annexure-11 dated 13.07.2017. Thereby, no illegality or irregularity has been committed by opposite parties no.3 and 2 by issuing letter under Annexure-10 dated 21.06.2017 and office order under Annexure-11 dated 13.07.2017 respectively.

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The petitioner having not been appointed in consonance with the rules and by following due recruitment process which violates Articles-14 and 16 of the Constitution of India, the principles of natural justice do not require to be observed.

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21. In Malloch v. Aberdeen Corporation, 1971 (2) All

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ER 1278, it has been observed as under:-

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“A breach of procedure, whether called a failure of natural justice or an essential administrative fault cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.”

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In Ravi S. Naik v. Union of India, AIR 1994 SC

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1558, the apex Court held that in such cases even principles of natural justice do not require to be observed.

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Coming to the contention of learned counsel for the petitioner that absorption of the petitioner as junior stenographer, having been made by the selection committee constituted under Rule-6 of the OHRC Rules, 2012, the same cannot be subsequently declared as irregular by the OHRC, it is seen on close scrutiny of Rule-6 of Rules, 2012, that OHRC has been vested with power for constitution of a committee consisting of such number of members as may be decided by it for filling up of the posts in the OHRC. As such, filling up of the posts has to be done by following Rule-4 of the OHRC

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Rules, 2012. Therefore, constitution of the committee by the OHRC, as stated under Rule-6, and absorbing the petitioner against a regular vacancy and giving regular scale of pay is contrary to Rule-4 of OHRC Rules, 2012. Thereby, any recommendation made by such committee for absorption of the petitioner cannot sustain in the eye of law. As a consequence thereof, the recommendation made by such committee for absorption of the petitioner as junior stenographer against a regular post cannot have any justification and the same cannot be given effect to in view of the fact that such recommendation is not in consonance with the provisions contained in Rule-4 of the OHRC Rules, 2012.

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In the present context the State Government has

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not exercised power of relaxation, as provided under Rule-11, by passing an order and recording reasons in writing in consultation with the OHRC. In absence of any material to that context, absorption of the petitioner as junior stenographer on mere constitution of a committee under Rule-6 of the OHRC Rules, 2012 cannot sustain in the eye of

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law. Thereby, the action taken by the OHRC absorbing the

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petitioner as junior stenographer is contrary to the rules governing the field and is violative of Articles 14 and 16 of Constitution of India. The consequential office order dated 13.07.2017 directing for repayment of the amount paid towards the annual periodical increment is inconsonance with the provisions contained in Rules-170 and 171 of the Orissa Treasury Rules under the Orissa Treasury Code-1. Therefore, the office order issued under Annexure-11 dated 13.07.2017 is well justified and cannot be interfered with.

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Now, it is to be considered as to if, in order to give effect to the order under Annexure-11 dated 13.07.2017, opportunity of hearing should have been afforded to the petitioner. In all fairness, when the OHRC decided to ask the petitioner for repayment of an amount of Rs.4264/-, by withdrawing the letter dated 23.05.2017 towards the annual increment with effect from 01.11.2016, the petitioner should have been given opportunity of hearing. While issuing notice,

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at the time of entertaining the writ petition, this Court passed

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order on 20.07.2017 to the following effect:-

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“Heard Mr. D.K. Sahoo-1, learned counsel for the petitioner and Mr. A.K. Mishra, learned Addl. Government Advocate for the State.

¶173

The petitioner, who was working as Stenographer under opposite party no.2- OHRC, files this application seeking to quash the order dated 21.06.2017 passed in Annexures-10 and order dated 13.07.2017 in Annexure-11, by which the office order dated 23.05.2017 sanctioning annual periodical increment in favour of the petitioner has been withdrawn and he has been directed to repay a sum of Rs.4264/- by depositing the same by way of a treasury challan in the appropriate Govt. head within a fortnight of receipt of that order on the basis of the inspection report no. 03/2014-15 communicated by Sr. Audit Officer/GSA(V) dated 21.06.2017.

¶174

Mr. D.K. Sahoo, learned counsel for the petitioner states that the petitioner is rendering service as Stenographer. Though he has absorbed as regular basis, he is entitled to get the benefit of increment which has been extended by the opposite parties. Now on the basis of the report of Sr. Audit Officer/GSA(V) dated 21.06.2017, the opposite party no.2 by order dated 13.07.2017 directed for recovery of the amount of Rs.4264/- without affording an opportunity of hearing to the petitioner.

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This Court is the considered view the matter requires consideration.

¶176

Issue notice.

¶177

One extra copies of the writ petition be served on learned Addl. Government Advocate for the State appearing for opposite party no.1 within three days.

¶178

Steps for issuance of notice by registered post with A.D. on opposite parties no. 2 and 3 be taken within three days. Office shall send notice fixing a short returnable date.

¶179

As an interim measure, there shall be stay operation of order dated 21.06.2017 passed by Sr. Audit Officer/GSA(V) in Annexure-10 and order dated

¶180

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13.07.2017 passed by Deputy Secretary in Annexure11 till 10^th August, 2017.

¶182

Issue urgent certified copy as per rules.

¶183

From the above quoted order, it can be safely inferred that the sole reason for entertaining the writ petition was, there

¶184

was non-compliance of principle of natural justice by the authority while directing for repayment of the amount from the petitioner. Though counter affidavits have been filed by opposite parties no.2 and 3, nothing has been spelt out in that regard. In view of such position, this Court is of the considered view that before implementing the order under Annexure-11 dated 13.07.2017 the opposite party no.2 should have given opportunity of hearing to the petitioner in compliance of principle of natural justice.

¶185

The word ‘nature’ literally means the innate

¶186

tendency or quality of things or objects and the word ‘just’ means upright, fair or proper. The expression “natural justice” would, therefore, mean “the innate quality of being fair”.

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“Natural justice”, another name of which is

¶189

“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 ”. The soul of natural justice is ‘fair play in action’.

¶190

In Ridge v. Baldwin, [1962] 1 All ER 834 (CA), Harman, LJ, in the Court of Appeal, countered natural justice with ‘fair play in action’.

¶191

In HK (An Infant) in re , [1967] 1 All ER 226 (DC)

¶192

Lord Parker, CJ, preferred to describe natural justice as ‘a duty to act fairly’.

¶193

In Maneka Gandhi v. Union of India , (1978) 1 SCC 248, P.N. Bhagwati,J, as his Lordship then was,

¶194

favoured the phrase ‘fair play in action’.

¶195

34

¶196

In Bhagwan v. Ramchand , AIR 1965 SC 1767,

¶197

the apex Court held that 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.

¶198

In Sukdev Singh v. Bhagatram, (1975) 1 SCC 421, the apex Court held that 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.

¶199

In Mohinder Singh Gill v. The Chief Election Commissioner, ( 1978) 1 SCC 405, the apex Court held as

¶200

follows:-

¶201

“ Natural justice is treated as “a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam-and of Kautilya's Arthasastra-the rule of law has had this

¶202

35

¶203

stamp of natural justice which makes it social justice.”

¶204

34. In Swadeshi Cotton Mills v. Union of India , AIR

¶205

1981 SC 818, the apex Court, while considering meaning of natural justice has observed as follows:-

¶206

“The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straightjacket 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, 2^nd Ed., page-1. In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction 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.”

¶207

35. In State of U.P. v. Vijay Kumar Tripathi , 1995

¶208

Supp (1) SCC 552, the apex Court held that it is important to

¶209

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

¶210

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¶211

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.

¶212

In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh , (2008) 16 SCC 276, the apex Court held that principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasijudicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

¶213

Applying the above principles of law to the present context, even if this Court already held that letter issued by the Accountant General in Annexure-10 dated 21.06.2017 and consequential office order dated 13.07.2017 in Annexure-11 are within the complete domain of the authority concerned and as such the same are well founded, but in order to give effect to letter dated 13.07.2017 in Annexure-11

¶214

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with regard to repayment of an amount of Rs.4264/- by depositing the same by way of treasury challan in appropriate government head within a fortnight, the authority should have complied the principles of natural justice. Due to noncompliance of the same in letter and spirit, this Court holds that action so taken directing the petitioner to make repayment of an amount of Rs.4264/- within a fortnight in appropriate head of accounts is in gross violation of principle of natural justice, inasmuch as, while giving effect to the office order dated 13.07.2017 the opposite party no.2 should have complied the principle of natural justice by affording opportunity of hearing to the petitioner.

¶216

In view of the facts and circumstances as well as

¶217

the principles of law, as discussed above, this Court, while upholding the letters issued by opposite parties no.3 and 2 in Annexure-10 dated 21.06.2017 and Annexure-11 dated 13.07.2017 respectively, directs that office order dated 13.07.2017 in Annexure-11, so far it relates repayment of an

¶218

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amount of Rs.4264/-, shall be given effect to by opposite party no.2 only in compliance of principles of natural justice.

¶220

With the above observation and direction, the writ

¶221

petition stands disposed of. There shall be no order as to costs.

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.......…………………….. DR.B.R.SARANGI, J.

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Orissa High Court, Cuttack The 6^th August, 2020/Alok/Ashok/GDS

Nihar Ranjan Tripathy v. State of Odisha

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Nihar Ranjan Tripathy v. State of Odisha

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