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2000 DIGILAW 324 (AP)

Abdulla Bin Ahmed Bakoban v. Government Of A. P. , Genera Administration

2000-04-25

S.R.NAYAK

body2000
S. R. NAYAK, J. ( 1 ) THIS writ petition is directed against the proceeding of the first respondent, the government of Andhra Pradesh, General administration (Poll. B) Department, bearing Memo No. 134/poll. B/96-16 dated 28-4-1999, by which the Government cancelled the orders issued in G. O. Ms. No. 75 GA (Poll. B) Dept. dated 25-2-1994, with immediate effect. ( 2 ) THE background facts of the case be stated as under: Petitioners 1 to 4 are the pensioners and petitioners 5 to 9 are the widows of the pensioners. The husbands of the petitioners 5 to 9 were originally sanctioned the pension and after their death, these widows were receiving the pension. The petitioners 1 to 4 and the husbands of petitioners 5 to 9 were serving the erstwhile Hyderabad Army, and after the merger of the State of Hyderabad with the Union of India, the Armed Forces of hyderabad State were demobilised. The liability of paying pension to the ISF members who, retired/released prior to 1-4-1950, was taken over by the Central government through their Order No. 3275 dated 20-7-1950. The petitioners 1 to 4 and the husbands of petitioners 5 to 9 are admittedly the non-ISF Armed Forces members, and in that view of the matter, they were not entitled to receive pension from the Govt. of India under the above order. When the matter stood thus, it appears that the petitioners 1 to 4 and the husbands of petitioners 5 to 9 submitted representations to the Govt. of. Andhra pradesh to extend the benefit of the order no. 3275 dated 20-7-1950 to them also by sanctioning pension. Their request was examined and the Govt. of Andhra Pradesh thought it fit to accede to the request of the petitioners in order to bring about equality between the two categories of Hyderabad state Forces. That resulted in Government issuing G. O. Ms. No. 75 dated 25-2-1994, directing that the non-ISF personnel of the ex-Hyderabad State Forces mentioned in the Annexure to the order, who have put in more than seven years,. but less than ten years service at the time of demobilisation, be granted pension by applying the principles of Mustering Out Concession. Accordingly, the petitioners had been paid pension. When the matter stood thus, it appears that in the year 1998, about 30 similarly situated persons made a representation to the Govt. but less than ten years service at the time of demobilisation, be granted pension by applying the principles of Mustering Out Concession. Accordingly, the petitioners had been paid pension. When the matter stood thus, it appears that in the year 1998, about 30 similarly situated persons made a representation to the Govt. of Andhra pradesh for grant of pension to them and since the Government did not accede to their request, they filed W. P. No. 30614/1998 in this Court. The said writ petition was disposed of by this Court on 14-12-1998, directing the Government to consider and dispose of the representation of those petitioners within two months from the date of receipt of a copy of the order. As per the direction of this Court, the Government while considering the representations of those 30 persons, formed the opinion. that sanction of pension to those 30 persons and the 9 petitioners in this writ petition would involve considerable financial burden on the exchequer, and that prompted the government to pass the impugned order dated 28-4-1999, cancelling the earlier orders passed in G. O. Ms. No. 75 dated 25-2-1994. Subsequently, the Government of Andhra Pradesh issued Memo no. 134/poli. B/96-19 dated 28-5-1999, styled as "amendment" of the Government memo No. 134/poli. B/96-16 dated 28-4-1999. Para 4 of the said memo reads as under: the above orders of Government, have been reviewed keeping in view of the directions of the Hon ble High court of Andhra Pradesh dated 14-12-98 in W. P. No. 30614 of 1998. Government felt that these are some decades back cases, these cases involve the Government legally and financially, the orders issued in g. O. Ms. No. 75 G. A. D. dt. 25-2-1994 showing particularly; non-availability of records etc. , for examining future cases, are kept in view and government of Andhra Pradesh hereby decided to cancel the orders issued in G. O. Ms. No. 75 G. A. (Poll. B) department dt. 25-2-1994, with immediate effect. ( 3 ) ). From the above para, it is quite clear that the Government thought it appropriate and necessary to issue notices to the writ petitioners before taking any action to cancel G. O. Ms. No. 75 dated 25-2-1994. However, it is admitted position that no individual notice was subsequently issued to the petitioners. It appears that only the copies of the amendment dated 28-5-1999 were sent to the petitioners. No. 75 dated 25-2-1994. However, it is admitted position that no individual notice was subsequently issued to the petitioners. It appears that only the copies of the amendment dated 28-5-1999 were sent to the petitioners. Subsequently, the Government issued G. O. Ms. No. 452 g. A. D. (Poll. B) Department dated 2-11-1999, cancelling the orders issued in g. O. Ms. No. 75 dated 25-2-1994. Then, the petitioners filed WPMPNo. 29311/99, seeking amendment of the prayer so as to assail the validity of G. O. Ms. No. 452 dated 2-11-1999. ( 4 ) ). Mr. V. Srinivas, learned Counsel for the petitioners, at the threshold, would contend that the impugned order in g. O. Ms. No. 425 dated 2-11-1999 suffers from an error apparent on its face inasmuch as the petitioners were not heard in the matter before the above impugned order was issued. The learned Counsel would also contend that Govt. of Andhra Pradesh in the year 1994, being satisfied that in order to achieve parity between the two categories of Hyderabad State Forces, thought it appropriate to extend the benefit of pension to the pensioners also,and therefore at this distance of time, it was totally improper and unreasonable on the part of the Government to cancel pension to the petitioners. ( 5 ) THE learned G. P. for Finance and planning, on the other hand, would contend that the petitioners do not have any vested right to claim pension and what the government did in the year 1994 was only a gratuitous act, and therefore, it is permissible for the Government to cancel the pension earlier granted by it. ( 6 ) ). The first contention of the learned counsel for the petitioners, in my considered opinion, is well founded. Although the Government thought it fit to issue notices to the petitioners before it took final decision on the question whether g. O. Ms. No. 5 dated 25-2-1994 should be cancelled or not, it did not issue any individual notices to the petitioners giving them an opportunity to have their say in the matter. However, the learned G. P. for finance and Planning would point out that the copies of the amendment dated 28-5-1999 were sent to the petitioners and the petitioners did not choose to submit any opposition to the proposal and therefore there was no violation of principles of natural justice. However, the learned G. P. for finance and Planning would point out that the copies of the amendment dated 28-5-1999 were sent to the petitioners and the petitioners did not choose to submit any opposition to the proposal and therefore there was no violation of principles of natural justice. This contention of the learned G. P. is not acceptable to the Court. Service of copies of the amendment dated 28-5-1999 cannot be equated to service of notice contemplated under the order dated 28-5-1999, In fact, in the amendment dated 28-5-99, no reasons which prompted the government to cancel the orders issued in g. O. Ms. No. 75 dated 25-2-1994 are stated. It is well settled that fair play in action mandates the State and State Authorities to comply with principles of natural justice even in a case where they choose to withdraw or cancel gratuitous benefits from the beneficiaries. The petitioners have had the benefit of drawing pension from the date of demobilisation, and in that view of the matter, the State Government ought to have issued notices to the petitioners before they issued the impugned order. ( 7 ) ). Since the impugned order is vitiated on account of violation of principles of natural justice and fair play in action, it is not necessary for this Court to consider the second contention of the learned Counsel at this stage. It is for the Government to consider the second contention of the petitioners and pass appropriate order. ( 8 ) ). In the result, the Writ Petition is allowed. The impugjied proceeding in g. O. MS. NO. 452 dated 2-11-1999 is quashed. The proceedings shall stand remitted to the government of Andhra Pradesh with a direction to issue individual notices to the writ petitioners giving them a fair opportunity to submit their representations and then to decide. No costs.