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1996 DIGILAW 56 (GUJ)

S. v. Shah VS STATE

1996-01-30

S.K.KESHOTE

body1996
S. K. KESHOTE, J. ( 1 ) RULE. Mr. D. A. Bambhania, learned counsel waives service of notice of rule on behalf of the respondents. Looking to the facts of the case and with the consent of the parties, the writ petition is taken up for final disposal. ( 2 ) MR. D. A. Bambhania filed reply to the writ petition today in the Court which has been taken on the record. Heard the learned Counsel for the parties. In the writ petition, the Counsel for the petitioner raised several contentions, but I do not consider it necessary to advert to all those contentions except one which according to me is sufficient to allow this writ petition. ( 3 ) THE prtitioner is a Sales Tax Inspector in the Department of Sales Tax of the government of Gujarat. The Government of Gujarat had evolved a scheme of higher grade scale to deal with the problem of absence or restricated chances of promotion vide resolution dated 5-7-1991. In pursuance of the said scheme the petitioner was given the benefit of the higher paysale vide order dated 7-11-1992 with effect from 1987. The petitioner was given the arrears of fixation and he is getting the pay in the higher payscale continuously. Vide resoltuion dated 16-8-1994, the resolution dated 5-7-1991 was amended. A consequent resolution has been passed on 11-7-1995 by the State Government and the petitioner is granted higher payscale with effect from 1-6-1989 instead of 1-6-1987 as a result of which the recovery of the excess amount received by the petitioner during the period from 1-6-1987 to 1-6-1989 in the higher pay scale is sought to be made. The petitioner by this writ petition has challenged the resolutions dated 16-8-1994 and 11-12-1995. One of the contentions of the learned Counsel for the petitioner is that both the resolutions have been passed without giving notice and opportunity of hearing to the petitioner. The Counsel for the petitioner contended that under the resolution dated 16-8-1994 and 11-12-1995 his pay has been reduced for the period between 1-6-1987 to 1-6-1989. It is a case where the benefits which have been given to the petitioner of the higher payscale for the aforesaid period has been ordered to be taken back and further the recovery in serious monetary loss to the petitioner presently as well as in future also. It is a case where the benefits which have been given to the petitioner of the higher payscale for the aforesaid period has been ordered to be taken back and further the recovery in serious monetary loss to the petitioner presently as well as in future also. Because of these two resolutions the petitioners two grade increments are likely to be affected which will cause recurring losses in the pay as well as the further monetary loss in the amount to be paid to him on his retirement and the pension. Looking to the nature of the order and its results it was incumbent upon the respondent to comply with the principles of natural justice. ( 4 ) ON the other hand Shri Bambhania, the learned Counsel for the petitioner contended that it is retification of mistake and as such no notice and opportunity of hearing is to be afforded to the petitioner in the present case. The resolution provides the criteria for the consideration of the cases of higher payscale of the employees. As per this resolution dated 16th August, 1994 for the purpose of granting higher payscale the confidential reports for the last 9 years has to be considered. In the case of the petitioner, there were adverse remarks in his confidential reports of the year 1982-83 and 1983-84. He has rightly been given the benefit of higher payscale from 1-7-1987. I have considered the contentions made by the learned Counsel for the parties. In the writ petition, the notice was issued to the respondents and in the meanwhile the order of recovery and refixation of the pay of the petitioner stayed. I find sufficient merit in the contention of the learned Counsel for the petitioner that by the resoltuions dated 16- 8-1994 and 11-12-1995 the accrued rights of the higher payscale to the petitioner is taken away. The right which has accrued to the petitioner under the resolution dated 5- 7-1991 has been taken away and the petitioners pay has been ordered to be reduced. Not only this, but further the order for the recovery of the excess amount has also been made. These two resolutions result in serious monetary loss to the petitioner which may cause recurring losses to him for all times to come. Not only this, but further the order for the recovery of the excess amount has also been made. These two resolutions result in serious monetary loss to the petitioner which may cause recurring losses to him for all times to come. When the orders passed by the respondents in the form of the resolutions result in civil consequences and affects the rights of the petitioner to get the higher payscale, then, it is obligatory on the part of the respondents to give the opportunity of hearing to the petitioner. The benefit of higher payscale has been given to the petitioner long back. In the garb that these are administrative orders the respondents cannot be allowed to dispense with the requirement of affording opportunity of hearing to the petitioner before passing of the order which causes prejudice to him. It is settled law that even in a case where the administrative order results in civil consequences, the principles of natural justice has to be complied with. It is not in dispute that before passing of these two aforesaid resolutions neither the notice nor the opportunity of hearing has been given to the petitioner. This writ petition deserves to be accepted only on this ground. ( 5 ) IN the result, this writ petition succeeds and the same is allowed. The resolutions dated 16-8-1994 and 11-12- 1995 are quashed to the extent they relate to the petitioner. However, it is made clear that this judgment will not come in the way of the respondent to pass fresh order after giving notice and opportunity of hearing to the petitioner. Rule is made absolute in the aforesaid terms. No order as to costs. Rule made absolute. .