JUDGMENT

J. P. MISRA, J. — Subash Chandra Routray and Ajay Kumar Nayak call in question Annexure-1 (WP (C) No.9397/04) and Annexure-8 (WP (C) No.10342/04) wherein they have been demoted to the post of Kantawala from the appointed/engaged post of Sales Assistant-cum-Godown Assistant (hereinafter referred to as “S.A.- cum-G.A.”) with the direction for recovery of financial benefit by their authority (opp.Party No.1). In addition, regularization of the post of Kantawala in respect of Ajaya Kumar Nayak also has been struck off.

2. Briefly stated, Subash Chandra Routray (WP (C) No.9397/04) was temporarily appointed (Annexure-2) on ad hocbasis for 44 days as Helper-cum-Kantawala by opp.Party No.1 by order dated 23.5.1988 and he joined on 26.5.1988 before the opp.Party No.2 and is working till today. As per the relaxation of Orissa State Civil Supplies Corporation Employees Service Rules, 1993 (hereinafter referred to “the Rules, 1993”), he became eligible for the post of S.A.-cum-G.A. and, accordingly, he was appointed in the same post by the order dated, 11.12.1995 (Annexure-5). The copy of the order of appointment issued by opp.party No.2 was communicated to the Sub-Collector, Panposh, Managing Director, O.S.C.S.C. (O.P. No.1) and all other concerned. Thereafter sever¬al correspondences were made to O.P. No.1 form the office of O.P. No.2 for approval of the appointment of the petitioner while the petitioner was availing financial benefit of S.A.-cum-G.A. and his service book was opened as in Annexure-10. During the contin¬uance of his service, the Opp.Party No.1 demoted him to the post of Kantawala and directed recovery of the excess payment to him under Annexure-1 dated 28.8.2004.

3. Similarly, Ajay Kumar Nayak (WP (C) No.10342) being a Commerce Graduate was appointed as Salesman for Model Fair Price Shop on daily wages basis for 44 days under Annexure-1 dated 24.10.1991 with effect from 25.10.1991. In view of the order of the Supreme Court in Civil Appeal No.2281 of 1992 dated 13.10.1992 (Annexure-2) his service as Salesman-cum-Kantawala was regularized by opp.Party No.2 as per Annexure-3 dated 20.5.1997. He was also temporarily engaged as S.A.-cum-G.A. vide Annexure-6 dated 15.4.1999. Accordingly, his service book was opened vide Annexure-5. He was also transferred to various places in the post of S.A.-cum-G.A. by the office order under Annexure-7. Finally, the opp.Party No.1 did not approve the regularization of his appointment as Kantawala so also the appointment as S.A.-cum-G.A. directed recovery of the financial benefit availed by the promo¬tional order reverting him to the post of Kantawala under Annex¬ure-8 dated 14.9.2004.

4. The Managing Director, Orissa State Civil Supplies Corporation Ltd. (opp.Party No.1), has spoken on oath that the petitioners were employed temporarily whose services can be terminated without assigning any reason and the promotion/ap¬pointment given by opp.Party No.2 is illegal due to contravention of Rule 21(5) of the Rules, 1993. According to the averments, the post of S.A.-cum-G.A. is a class III post and the post of Kanta¬wala is a class IV post. The Junior Grade III posts are filled up by recruitment but not by promotion. According to him, the order of the apex Court has been misinterpreted.

5. Learned counsel for the petitioners has assailed the order of opp.Party No.1 in respect of both the petitioners on the ground of violation of natural justice. It is further contended that their promotion to the post of G.A.-cum-S.A. is quite regu¬lar as they were appointed in accordance with the Rules, 1993. According to the learned counsel, the opp.party No.1 is bound to regularize the post of Kantawala in view of the apex Court’s decision in Civil Appeal No.2288/92 dated 13th October, 1992 and also to approve their appointment as S.A.-cum-G.A. It is lastly contended that even if in the case of demotion, the scale of S.A.-cum-G.A. may be protected.

6. On the other hand , Shri S. Mishra, learned counse