D.R.Ram vs State of U.P.& Ors.

A. K. Yog, J.—All the respondents the represented by Standing Counsel. A counteraffidavit has been filed. RejoinderAffidavit has also been filed today in Court along with an application to grant interim order. Office to take the rejoinderaffidavit on record.

Since the in deciding ad interim order, Court is to consume the time in which the writ petition itself can be finally disposed of, it is deemed appropriate that writ petition may be heard finally. Counsel for petitioner as well as learned Standing Counsel have no objection The writ petition is, therefore, decided finally at this stage.

The petitioner filed present writ petition contending that he was appointed as Cleaner in the Medical Department and thereafter adjusted against the post of Shilpi IV Detailed facts need not be given since the present writ petition can be decided on a short question of law which does not require addressing the facts.

Briefly stated, contention of the petitioner is that he was initially accorded higher payscale but the order granting said benefit has been recailed without affording an opportunity of hearing and thus he has been nonsuited by impugned orders dated March 23,1998 (Annexures15 and 16 to the writ petition) consequence whereof his emoluments have been reduced. The petitioner is aggrieved that though an order prejudicing his right and interest has been passed, but he has not been afforded opportunity of hearing. Requisite averments have been made in paragraph 35 of the writ petition. In paragraph 30 of the writ petition. In paragraph 30 of the writ petition itself it is stated that Respondent No. 4 had illegally and arbitrarily recalled earlier order dated 2211 1997 only on the ground that it was passed due to clerical mistake. A perusal of the impugned order dated 2331998 (Annexure15) shows that the ground for recalling of the earlier order dated 22111997 (which was passed in compliance of the order passed by this Court on 24101997) was recalled as the same was passed due to clerical error/mistake. Consequent to the said order a consequential order dated 2331998 (Annexure16) was passed directing recovery of the excess payment.

Having heard learned Counsels for the parties and considering submissions at length it is borne out from the records that the statement contained in paragraph 35 of the writ petition (complaining that impugned order was passed without notice or affording opportunity of hearing) has not been denied by the Respondents in paragraph 13 of the counteraffidavit. In fact, averments in paragraph 35 of the petition have not at all been controverter in paragraph 13 of the counteraffidavit.

There is no doubt that an authority is competent to recall its order provided it comes to the conclusion that the order was passed under some mistake or ignorance of relevant material on record. In view of the jacks of the instant case that no opportunity of hearing was given to the petitioner, impugned order dated 2331998 (Annexure15) whereby the earlier order granting revised payscale vide order dated 22111997 was recalled as well as 2331997 (Annexure16 to the writ petition) directing for recovery of the excess payment are being set aside being in violation of principles of natural justice.

The writ petition is allowed with costs, which are assessed to Rs. 2,500 (rupees two thousand five hundred only) payable by the respondents within a period of one month from today. It is further directed that while determining the dispute regarding excess payment, opportunity of hearing afresh shall be afforded in accordance with law to the petitioner. The dispute regarding excess payment be decided within six months. Learned Standing Counsel is directed to send a certified copy of this judgment to the concerned officers for necessary information and compliance.