Parkash Chand and Another vs F.C.-cum-Secretary (Finance) and Others

Kuldip Singh, J.—The Petitioners in this petition have prayed for quashing of office order dated 28.1.2002 and office order dated 1.2.2003. It has also been prayed that Respondents may be directed to allow continuity of earlier pay fixation issued on 17.6.1999 and 13.7.1999 with consequential benefits. The Petitioners have also prayed protection of their pay as Junior Assistants under F.R. 27 or as a measure personal to them. The further case of the Petitioners is that they had filed petition against pay fixation order dated 28.1.2002 and order dated 1.2.2003 whereby the promotion/pay fixation of the Petitioners as Junior Assistants in the pay scale of Rs. 4400 - 7000 ordered earlier vide office order dated 17.6.1999 and order dated 13.7.1999 have been withdrawn/cancelled wrongly, arbitrarily, unconstitutionally and illegally by ordering revised pay scale in pay scale of Rs. 4400 - 7000 by placement instead of promotion which has reduced the pay by two increments all of a sudden without assigning any reason. The Petitioners were not given any show cause notice nor their options were called, hence the change/cancellation of earlier pay fixation is wrong, illegal.

The Respondents have contested the petition by filing the reply. It has been stated that notification dated 20.1.1998, 1.9.1998 and 31.5.2001 were issued by the Finance (Pay Regulation) Department to the Govt. of H.P. under proviso to Article 309 of the Constitution of India. It has also been stated that the Department/office has only complied with the rules/orders. The Petitioners have prayed relief for quashing above orders/rules of the Finance Department dated 28.1.2002 and 1.2.2003 which is improper. In fact the said office orders have been issued under the provisions laid down by Finance Department in its notifications dated 31.5.2001 and 3.11.2001. The Petitioners have never requested for withdrawal of these notifications. So the action of the Respondents No. 3 and 4 taken vide notification dated 31.5.2001 is legal and the petition is not maintainable. The Government of H.P. was right in carrying out amendment in the Pay Revision Rules. The amendment had effected the category of Junior Assistants who were allowed the benefit of F.R. 22, 1 (a) (i) as their promotion as Junior Assistant as per Pay Revision Rules, 1998 was notified on 1.9.1998. The Government was alive to this issue and accordingly Government had decided to waive off the recoveries as per notification dated 3.11.2001. The reduction of pay of the Petitioners is not arbitrary and illegal. The provision of F.R. 27 in this case is not applicable. The orders of re-fixation of pay issued on 28.1.2002 and 1.2.2003 are legal.

I have heard the learned Counsel for the parties. It has been submitted on behalf of the Petitioners that the impugned action of the Respondents has adversely affected the Petitioners inasmuch as the Petitioners were earlier promoted as Junior Assistants and now they have been given the placement as Junior Assistants instead of promotion as Junior Assistant. The consequence of impugned action is that the pay of the Petitioners has been reduced and Petitioners will lose two increments. The impugned action of the Respondents has civil consequences. The Petitioners were not heard nor were they given any option before the impugned action was taken by the Respondents. It has been submitted that due to impugned action the pay of the Petitioners has been reduced from back date and no doubt the Government have waived off recoveries to some extent but still the recoveries have not been waived off altogether. The learned Counsel for the Petitioners has relied Syed Abdul Qadir and Others Vs. State of Bihar and Others, and Division Bench judgment of this Court in CWP(T) No. 9003 of 2008 dated 5.1.2010 titled Narain Singh and Ors. v. Commissioner-cum-Secretary(Revenue) and Anr. He has submitted that the Respondents have given the earlier benefit to the Petitioners by promoting them as Junior Assistants. It is not a case where the Petitioners mis-represented or played fraud for obtaining undue benefit from the Respondents. The Petitioners were given benefit by the Respondents in their own wisdom. A right had accrued in favour of the Petitioners due to earlier benefit given by the Respondents. Such right could not have been taken away by the Respondents without following the principles of natural justice and for the same reasons no recoveries can be made from the Petitioners as a consequence of impugned action of the Respondents.

In Syed Abdul Qadir (supra) the Supreme Court has held as follows:

Undoubtedly, the excess amount that has been paid to the Appellants-teachers was not because of any misrepresentation or fraud on their part and the Appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the Appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the Appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the Appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the Appellants-teachers should be made.

The learned Counsel for the Petitioners has submitted that the Division Bench judgment in Narain Singh''s (supra) is more nearer to the facts of the present case. The Division Bench in that case has held as follows:

Petitioner was promoted w.e.f.1.1.1996 pursuant to orders dated 1st December, 1998. The general revision of pay scale was notified and issued on 20th January, 1998. The pay of the Petitioner was enhanced. However, vide order dated 31st December, 2001 the promotion of the Petitioner as Junior Assistant in the pay scale of Rs. 4400 - 7000 has been withdrawn. This order has been passed admittedly without hearing the Petitioner. The Petitioner has been visited with civil and evil consequences. It is settled law by now that any order which has civil and evil consequences must be passed in accordance with the principles of natural justice.

Accordingly, Annexure A-1 dated 31st December, 2001 is quashed and set-aside. However, liberty is reserved to the Respondents to proceed with the matter in accordance with law.

The petition stands disposed of.

In the present case also the impugned action has been taken without hearing the Petitioners. Therefore, in view of the judgment dated 5.1.2010 in Narain Singh''s (supra), the impugned action of the Respondents is not sustainable.

No other point was urged.

The result of the above discussion, the petition is allowed, Annexure A-1 dated 28.1.2002 and Annexure A-2 dated 1.2.2003 so far Petitioners are concerned are quashed and set-aside. However, liberty is reserved to the Respondents to proceed with the matter in accordance with law after hearing the Petitioners either collectively or through their representatives. No costs.