Roop Krishan Zaroo vs Union of India

The brief facts which have given rise to the instant petition are that the petitioner pursuant to an advertisement issued by respondent No. 2

inviting applications for appointment to the post of Draftsman Grade FV applied, he was considered and eventually appointed as Draftsman Grade

TV against a permanent available vacancy in the pay scale of Rs. 550570 vide order No. 544/1/0 dated 23/02/1975. He functioned on the post to

the satisfaction of his superiors, was declared quasi permanent and was confirmed against the post from 1975 which is the year of his first

appointment. He has been working in the pay scale of Rs 550750 (revised subsequently) and the entries to this effect were recorded in his Service

Book.

In the year 1981 an order bearing No. 544/EMP/CIVS/24 dated 12/09/ 981 was issued through which the petitioner was placed in the lower

pay scale or Rs. 360560. This order was assailed by the petitioner before this court vide writ petition No. 348 of 1981. The writ petition was

allowed and the order was set aside. However, it was left open to the respondents to deal with the matter in accordance with the rules and

principles of natural justice and subsequent to the order of the court, a notice was issued to the petitioner tearing No. 544/EMP/PKZ/CIVSa38.

The said show cause notice was replied by the petitioner, a copy of the reply is appended with the writ petition and a fresh order has been passed

by the respondent vide No. 544/RKZ/CIVS/X dated 01 061987 which has the effect of reducing petitioners pay scale from Rs. 550570 to Rs.

330560 retrospectively from 24/02/1975. It also requires the petitioner to refund an amount of Rs, 81,251,50, the petitioner being aggrieved of

the said order, therefore this writ petition. 3. The respondents have filed a counter and crux of the averments made in the counter is that a mistake

has crept in the order of appointment of petitioner in respect of the pay scale which was entered in his service book as well and the petitioner

continued to draw his pay on the basis of such mistake, he was also declared quasi permanent and confirmed as well and the mistake was detected

which has been rectified through the order impugned, accordingly asked to refund the excess pay and allowances drawn by him from 24/02/1975

till 01/06/1987. On these grounds the respondents have challenged the maintainability of the writ petition.

Before deliberating upon the vexed issue involved in the writ petition, it needs to be mentioned that this writ petition could have been dismissed

for nonpr6^cutiorrb~ecaiisc~no""one appeared for the petitioner, but instead of doing so. I have chosen to deal with the matter because of the

reasons that the petitioner had filed the writ petition way back in the year 1981 and yet another petition in the year 1987, as such he has been in

the court for last 17 years. The petition had come up for consideration before the court way back in the year 198S, therefore on 19/02/1998, but

neither the petitioner nor his counsel chose to appear and only presumption is that the petitioner might have migrated. The dismissal of writ petition

is likely to prejudice the petitioner and such dismissal is bound to defeat the ends of justice, moreso, since I am inclined to accept the writ petition,

disposal of the writ petition is no way going to prejudice the rights of the petitioner, therefore, I proceed to address myself on the merits of the

petition.

I have considered the matter. What emerges from the pleadings of the parties is mat the petitioner was appointed in the pay scale of Rs. 550570

and has served in this pay scale for a very long span of time. The order of appointment placing the petitioner in the said grade is not disputed, but it

is sought to be withdrawn in respect of the pay scale on the ground that the placement is the result of a clerical error. This stand of the respondents

necessitates in depth examination of the pleadings so as to find out as to whether the petitioner has in any manner contributed to the alleged error.

Admitted position is that the petitioner had been appointed by a competent authority in a particular grade and the order was acted upon and the

salary has been allowed to the petitioner on the strength of a valid appointment order and till petitioner was not only declared quasi permanent but

confirmation was also accorded. All this goes to show that the respondents have exercised the jurisdiction vested in them in accordance with the

rules from time to time on the basis of appointment order of the petitioner which specifically places him in the grade of Rs. 550570 and the

respondents have not disputed these facts,

Examining the issue on the basis of the material available. It is emphatically clear that the petitioner has in no respect whatsoever contributed to

such error. It being so, a principal question arises as to whether benefit allowed to the petitioner can be denied to him rendering him liable to refund

the part of salary disbursed to him. So as to make the order reducing the petitioners pay scale to a lower grade effective retrospectively.

The petitioner is aggrieved of order of recovery as also of reduction of pay scale. Regard being had to the facts detailed in the proceeding paras,

the impugned order directing the recovery of the salary which has been disbursed to the petitioner in accordance with the order of his appointment

could not have been passed and the grade having been allowed by a valid order can not be reduced retrospectively, therefore, direction to refund

the amount is not sustainable. But this finding shall protect the petitioner only till 06041987 and not thereafter because on that date the show cause

notice bearing No. 544/EMP/RKZ/CIVS/138 dated 06041987 stands issued.

Going to the reduction of the pay scale prospectively from 06/04/1987 which is the date of show cause notice issued to the petitioner. It is

relevant to say that the impugned notice came to be issued against the petitioner which stands replied by him, a copy of which is appended with the

writ petition and this fact also is not denied by the respondents. The respondents were required to take the defence of the petitioner into account,

but the order impugned does not reflect so. Mere mention made in the impugned order that reply has been considered will not absolve the

respondents from satisfying the court that the rules governing the subject and rules of natural justice were followed, moreso, the rules of natural

justice being part and parcel of our constitutional system, the respondents are therefore bound to observe the same, but the order impugned does

not satisfy me in respect of observance of said principles. The court can not lose sight of the fact that the impugned order visits the petitioner with

civil consequences. It is also to be borne in mind that the petitioner had been appointed against permanent vacancy in the pay scale or Rs. 550570,

it being so it is not open to the respondents to reduce his pay scale unilaterally and arbitrarily in violation to the rules of natural justice on the ground

that mistake had crept in. Well there can be unintentional mistakes but correction to such mistakes should not ordinarily be opted for after a very

long span of time, no doubt, option of correction can be exercised within a reasonable period of time depending on the facts and circumstances of

a particular case and if the functionaries of the state choose this course, they shall have to follow the procedure established by law as also rules of

natural justice.

On the facts and circumstances stated above, the writ petition succeeds and is allowed. The impugned order bearing No. 544/RXZ/ CIVS/X

dated 01 06'987 is quashed, however, it is clarified that the respondents shall be at liberty to proceed ahead with the enquiry on the basis of show

cause notice dated 06041987 but shall follow the procedure established by law besides principles of natural justice.