Dahyabhai Paragbhai Vankar vs State of Gujarat and Another

K.S. Jhaveri, J.—By way of these petitions, the petitioners seek to challenge the order passed by the respondent-authority dated 07.11.2008 by which recovery is sought to be effected from the petitioners on the ground that they were not entitled to get the higher pay-scale of Rs. 5500-9000.

The petitioners were appointed as Constables in the police force of the respondent-State and were promoted from time to time. On the basis of the Government Resolution dated 16.08.1994, the petitioners were granted the higher pay-scale of Rs. 5500-9000, having completed nine years of service. Both the petitioners have retired from service, having attained the age of superannuation.

In pursuance of an order dated 26.04.2007 issued by respondent No. 2 by which the petitioners were placed in the pay-scale of Rs. 4000-6000 from the pay-scale of Rs. 5500-9000, the petitioners were served with the impugned order dated 07.11.2008 informing them that the earlier order dated 26.04.2007 has been modified and that the differential amount of salary shall be recovered from them. Being aggrieved by the same, the petitioners have preferred this petition.

When the matter was taken up for hearing, learned counsel for the petitioner has placed reliance upon a decision of this Court rendered in S.C.A. No. 398/2009 & allied matters dated 13.02.2009 and more particularly, on the observations made in Paras - 6 to 8 of the decision, which reads as under;

If an opportunity would have been given to the petitioners, in that case, the petitioners could have satisfied the authority that the petitioners were rightly given the pay-scale of 5500-9000 and at the relevant time, the examination of Police Sub-Inspector was not compulsory and irrespective of passing the departmental examination of Police Sub-Inspector, benefit of higher pay-scale of Police Sub-Inspector was required to be given on completion of nine years.

Under the circumstances, without further expressing any opinion on merits, the impugned orders dated 11/05/2007 and 07/11/2008 deserves to be quashed and set aside reserving a liberty in favour of the concerned respondent to take an appropriate decision after giving an opportunity to the petitioners.

For the reasons stated hereinabove, the Special Civil Applications succeed. The impugned orders dated 11/05/2007 and 07/11/2008 are hereby quashed and set aside as the same are in breach of principles of natural justice with a liberty in favor of the concerned respondent, after giving an opportunity to the petitioners. If the respondents intend to pass any further order, the same shall be initiated within a period of two months from today as the petitioners have already retired and because of the aforesaid, the pension of the petitioners have not been fixed and are paid only ad hoc pension. After initiation of proceedings, if any, the same shall be completed by the concerned respondent within a period of three months. The petitioners are directed to co operate and submit the reply at the earliest as the same would be in their interest also.

With this, the Special Civil Applications are disposed of. Rule is made absolute in each of the petitions with no order as to costs. Direct service is permitted.

4.1 Learned counsel for the petitioners has, therefore, submitted that similar directions may be issued in these matters also since the petitioners were not heard before passing the impugned order.

Heard learned counsel for the respective parties and perused the documents on record. Admittedly, the impugned orders passed by the respondent-authority is in violation of the principles of natural justice inasmuch as the petitioners were not heard before passing the said orders. Hence, in the interest of justice and in view of the request made by the learned counsel for the petitioners, it would be appropriate that the respondent-authority hears the petitioners first, in respect of the subject matter, before effecting any recovery.

Consequently, the petitions are allowed. The impugned orders dated 26.04.2007 & 07.11.2008 passed by the respondent-authority are quashed and set aside. The respondent-authority shall hear the petitioners, in the present subject matter, before passing any order/s directing recovery. It is further observed that if the respondents intend to pass any further order, the same shall be initiated, within a period of two months from today, as the petitioners have already retired and they have paid only ad hoc pension in view of the above scenario. Initiation of proceedings, if any, shall be completed by the concerned respondent within a period of three months. The petitioners are directed to co operate and submit their reply, at the earliest, as the same would be in their interest also. With the above observations, the petitions stand disposed of. Rule is made absolute. Direct service permitted.