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Ramakrushna SwaIn and ors., Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case Nos. 834, 835 and 836/78
Judge
Reported in1984(I)OLR289
ActsOrissa Revised Scales of Pay (for non-Gazetted Officers) Rules, 1974 - Rules 5 and 13; Administrative Law
AppellantRamakrushna SwaIn and ors., ;prafulla Kumar Mohanty and ors. and R.N. Das and ors.
RespondentState of Orissa and ors.
Appellant AdvocateM. Patra, B. Dagra, B. Mishra and R. Mohanty
Respondent AdvocateR.K. Patra, Addl. Government Adv.
DispositionApplication allowed
Cases ReferredSuresh Koshy George v. University of Kerala
Excerpt:
.....work was very different from that of the computers. the department recommended their case to the government, but the government turned down their representation-vide annexurel 7. thereafter, a direction was given for recovery of the exeess amount drawn by the petitioners. the petitioners were given the revised scales of pay with effect from 1. 1. 1974. they enjoyed the revised scales of pay for two years and drew increments according to the revised scales. (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). very soon thereafter a third rule was envisaged and that is that quasijudicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. arriving at a just decision is the aim of both quasi..........completion of training they are appointed as grade ii traversers in the ,scale of rs, 115-180. grade i traversers (in rs. 125-220 scale of pay) are selected from amongst the competent grade ii traversers. there are posts of head traversers in the scale of rs. 115-150;- which is the promotion avenue for grade i traversers. the traversers of this office in their memorandum have mentioned that they are required to undertake traverse survey of unsurveyed arease before detailed cadastral survey is undertaken by the settlement organisation. for this purpose they have to remain in inaccessible areas continuously for long duration with consequent loss of amenities. their nature of work is also very arduous. they have suggested certain scales of pay. 23. the service association has mentioned.....
Judgment:

R.C. Patnaik, J.

1. The petitioners in these writ applications seek quashing of the decision of the Government in the Finance Department (Annexure-3) revising and lowering the scales of pay fixed by the Orissa Revised Scales of Pay (for non Gazetted Officers) Rules, 1974 (for short,the Rules') for the posts of Head Traversers, Traversers Grade- I and Traversers Grade II, in exercise of power vested under rule 13 of the Rules.

2. The petitioners were working as Traversers in defferent grades in the Survey and Map 'Publication Organisation of the State Government. Prior to 1. 1, 1974, the scales of pay of the posts were as follows :-

Head Traversets-Rs. 155-2507-

Traversers Gr. I -Rs. 125-220/-

Traversers Gr. II-Rs. 115-180/-

The State Government constituted the Fourth Pay Committee to undertake comprehensive revision of the existing structure of the pay scales of the various catagories of the State Government employees and the Dear ness Allowance admissible to them, and to make recommendations for their retionalistion and suitable revision. The Committee received representations from and heard various organisations and associations and also the departments of Government and submitted its report on 30. 3. 1974. As regards Traversers and Computers, it observed and recommended as follows.-

'22. The minimum qualification prescribed for the Traversers of this organisation is Matriculation. After appointment the candidates are to undergo training in Traverse Survey and computation work for a period of two years. During training, the trainees get a fixed pay of Rs. 110/- per month and only after successful completion of training they are appointed as Grade II Traversers in the ,scale of Rs, 115-180. Grade I Traversers (in Rs. 125-220 scale of pay) are selected from amongst the competent Grade II Traversers. There are posts of Head Traversers in the scale of Rs. 115-150;- which is the promotion avenue for Grade I Traversers. The Traversers of this Office in their memorandum have mentioned that they are required to undertake traverse survey of unsurveyed arease before detailed cadastral survey is undertaken by the Settlement Organisation. For this purpose they have to remain in inaccessible areas continuously for long duration with consequent loss of amenities. Their nature of work is also very arduous. They have suggested certain scales of pay. 23. The Service Association has mentioned that the pay scales of Traversers and Computers should be equated with the Kanungos and with the Engineering Overseers. We do not agree with this view as the Kanungos have higher minimum educational qualification as compared to Computers and Traversers and are also expected to discharge more responsible functions. For the same reason they pay scales of Computers and Traversers cannot also be equated with the Engineering Overseers. Having regard to all the relevant factors, we recommend the following scale of pay :Traversers Grade II-370-550/-Traversers Grade I-375-620/-Head Traversers -475-750/-Traverse DetachmentOfficer -500-825/-Computing SectionComputer Grade II-300-410/-Computer Grade I -300-430/-Head Computer -320-500/-Chief Computer (N. G.) 370-570/-

As regards the aforesaid categories of employees, Government accepted the recommendation and the Orissa Revised Scales of Pay Rules, 1974 made under Article 309 of the Constitution of India were notified on 2. 9. 1974. The Rules were retrospectively enforced from 1. 1. 1974. Rule 4 reads as follows :-

'Scale of pay of the post :-As from the commencement of these rules, the scale pf pay of every post specified in Column 2 of the 1st Schedule shall be as specified against it in Column 4 thereof.'

The relevant portion from the Rules relating to the scales of pay is as under :

'SI. Name of the Post. Existing scale Revised scaleNo. of Pay. of Pay.232. Head Traverser 155-250 475-750/-233. Traverser Grade I 125-220 375-620/- 234. Traverser Grade II 115-180 370-550/-'

Upon the enforcement of the Rules with effect from 1.1. 1974, the petitioners became entitled to and drew their pay according to the revised scales of pay. They drew increments also according to the revised scales.

3. About two years thereafter Government purporting to act under rule 13 issued a notification revising the scales of pay enjoyed by the Traversers under the Rules by lowering the same as under:

Name of the post Revised scale of Further revisedpay as per the scale of pay.report of thePay Committee.Head Traversers 475.750 400-620 Traversers Grade I 375-620 370-570Traversers Grade II 370-550 320-500

Rule 13 is as follows :-

''Interpretation and power to remove anomalies or any other difficulties : When a question arises for interpretation of these rules removal of anomalise, omissions and difficulties, all such matters shall be referred to the State Government in the Finance Department immediately for clarification and decision.'

It has been alleged that the aforesaid decision of the State Government was taken on the representation of the Computers, who had been given scales of pay lower than those enjoyed by the Traversers under the Rules. It has also been alleged that by accepting the representation, Government raised the scales of pay of the Computers and lowered the scales of pay of the Traversers. The Traversers were neither heard in the matter nor were given an opportunity to place their case before the Government. They have complained chat the nature of their work was very different from that of the Computers. Their work was more arduous in cature, risky in character. These aspects had been taken into consideration by the pay Committee while fixing different scales of pay for the Traversers and for the Computers. As their scales of pay were substantially lowered, it was obligatory on the Government to afford them an opportunity of being heard before any decision, which prejudicially affected their right, was taken. The department recommended their case to the Government, but the Government turned down their representation-vide Annexurel 7. Thereafter, a direction was given for recovery of the exeess amount drawn by the petitioners.

4. Mr, R. Mohanty, the learned counsel for the petitioners, has strenuously contended that the report of the Pay Committee having been accepted and rules under Article 309 fixing the scales of pay having been framed, it was not open to the Government to lower the scale of pay of the petitioners on the pretext of removing an anomaly under Rule 13. It was not a case of anomaly. Moreover, as the petitioners were going to be substantially affected by the lowering of their scales of pay after almost two years and by the direction for recoveryt the State Government was obliged to afford them an opportunity of being heard. The decision of the Government as in Annexure.3 violated the principles of natural justice.

5. By Rule 4 the revised scales as specified became operative from 1. 1. 1974. Rule 5 reads thus :

'5. Drawal of pay in the Revised scales :

Save as otherwise provided in these rules, a Government servant shall draw pay in the revised scale applicable to the post to which he is appointed :

Provided that a Government servant may elect to continue to drawpay in the existing scale until the date on which he earns his next or any subsequent increment, in the existing scale or until he vacates his post or ceases to draw pay in that scale.Explanation-1 ; The option to retain the existing scale under the proviso to this rule shall be admissible only in respect of one existing scale.

Explanation -2 ; Where a Government servant exercises the option under the proviso to this rule to retain the existing scale in respect of a post held by him in an officiating capacity, for the purpose of regulation of pay in that scale under rule 74 of the Orissa Service Codes his substantive pay shall be the substantive pay which he would have drawn, had be retained the existing scale in respect of the permanent post on which he holds a lien or would have held a lien, had his lien not been suspended.'

The petitioners drew their pay according to the scales of pay as revised by the Rules with effect from 1. 1. 1974. they drew their increments also according to the revised scales.

6. The opposite parties have taken the stand that revision of the scales of pay of the Traversers as compared to other comparable categories of posts was considered to be anomalies as the pay committee had not given any specific reason for treating the Traversers differently for other comparable posts. But it has been admitted that the initial field and boundary survey of village is done by the Traversers Grade I and Trayersers Grade II. For seven to nine months in a year ''the petitioners are required to stay in camps in the field. For the remaining period of the year they attend to the computation work in the headquarters office and lead stationary lives. 'The Traversers had represented to the Committee that the nature of their work was arduous, involving considerable danger and risk to their lives. They were to work in distant places, in dales and valleys, inside jungles and over hills, very often in unhealthy climate. They remain away from their families and friends for a considerable part of the year. The pay Committee had taken the nature of their work and their hardship into consideration, the petitioners have urged, while recommending different scales of pay for them. The counter affidavit in a large measure has accepted the assertions of the petitioners, it is also admitted that computation work is done in the office at headquarters.

7. The stand of the opposite parties has been that the lowering of the scales was done in exercise of power under Rule 13, that is by way of removal of anomalies. 'Anomaly' means : 'an unusual irregularity, or abnormality or unexceptional circumstance.' Could one say, having regard to the recommendation made by the Pay Committee especially in paragraphs 22 referred to above, and the nature of work of the Traversers and that of the Computers, that there was an unusual irregularity or abnormality calling for interference with the scales of pay granted to the Traversers by the Rules. The opposite parties, we have already indicated, have substantially admitted the assertions of the petitioners as regards the nature of their work. The Traversers, it has been admitted, remain away from their families and work in remote places-over hilly tracks and in jungles, for six to nine months in a year whereas computation work is done at the headquarters. The distinction, therefore, between the nature of work of the Traversers and the Computers was patent. The Pay Committee considered these aspects and had given higher scales to the Traversers. If the Computers clamour for higer scales, it was not a case of an unusual irregularity or abnormality, nor did it give rise to an unexceptional circumstance calling for a lowering of the scales of pay specified for Traversers under the Rules. The Government considered the Pay Committee's recommendations and accepted it and thereafter the Rules were framed under Article 309 of the Constitution of India. We, therefore, presume consideration of the matter in depth at various stages. In our opinion, the case was not one which came under Rule .13 as an anomaly.

8. The impugned order suffers from a grave infirmity. The petitioners were given the revised scales of pay with effect from 1. 1. 1974. They enjoyed the revised scales of pay for two years and drew increments according to the revised scales. Almost two years thereafter a decision was taken behind their back lowering their scales of pay. It is admitted that they were not heard in the matter. The stand taken in the counter affidavit is that Rule 13 does not contemplate affording an opportunity of being heard. So, the question of giving an opportunity did not arise.

9. To act fairly. That is the simple precept which governs the administrative procedure of all public bodies. The duty to act fairly cannot be set down in a series of set propositions. In the application of the concept, there must be real flexibility so that very different situations may be met without producing procedures unsuitable to the object in hand. In A. K. Kaipak and Ors. v. Union of India and others, AIR 1970 SC 150, which is now classic. Hegde, J. for the constitution Bench observed :

'The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has under, gone a great deal of change in recent years. In the past it was thought that it included just two rules, namely, (1) no one shall be a judge in his own cause (Nemo debet esse judex propria cause), and. (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasijudicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. 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 it administrative enquiries.. Often times it is not easy to draw the line, that demarcates administrative enquiries froni 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 more far reaching effect than a decision in a quasi judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968. D/-15. 7. 1968 (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the inquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision of the facts of that case.'

10. It is true, no doubt, that Rule 13 does not expressly embody the principles of natural justice. But having regard to the nature of the subject-matter, the framework of the law and the consequences that might ensue by the non-observance of the principles of natural justice, we are firmly of the opinion that before a person was prejudicially affected by a decision under Rule 13, he was entitled to an opportunity of being heard. There is nothing in the provision which would show that the audialteram partem principle was excluded by implication- The impugned decision, Annexure-3, suffers from the sin having offended the principles of natural justice and is, therefore, beyond salvage and we quase it.

11. In the result, the writ applications succeed and Annexure-3 in each of the writ applications is quashed. The petitioners be restored to their pay accrding to the Revised Pay Rules, 1974. Recovery if inade, should be restored.

There would be no order as to costs.

B.K. Behera, J.

12. I agree.


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