Bismah Sayeed v. Principal Secretary, Forest & Pollution Control Board
2002-05-13
NISAR AHMAD KAKRU
body2002
DigiLaw.ai
The petitioner was appointed as drafts person in the year 1993 vide order No. 12 PCB of 1993 dated 01/03/1993. Her services stand regularised vide order No. 20-PCB of 1997 dated 07/04/1997. The order may be noticed : "It is hereby ordered that the services of Mrs. Bisma Sayeed D/O Shri M. S. Buchh is regularised as Drafts person in the Jammu and Kashmir State Pollution Control Board with effect from 01/03/1993 in the grade of Rs. 1600-2660. By order." 2. Notwithstanding the aforementioned order, the respondents have taken an objection to the continuation of the petitioner in the pay scale stipulated in the order reproduced hereinabove on the ground that other draftsmen of the Board are working in a lower pay scale than the one accorded to the petitioner. The contention needs to be appreciated in the light of the fact that the petitioner was appointed and confirmed in a particular pay scale which was spelt out in her order of appointment itself. May be there are persons who have consented to their appointment in a lower pay scale but it is not a cause countenanced in law which could justify reduction of petitioners pay scale for the simple reason that she has neither consented to nor accepted a lower pay scale. 3. It was next contended that SRO 75 does not envisage grade of Rs. 1600-2660 for the post of draftsman but amazingly they have no where stated as to which is the pay scale admissible as per the said SRO. Conversely the schedule appended to the petitioners rejoinder indicates that the post of draftsman carries the pay scale of Rs. 1600-2720 plus special pay. What is the pay scale the petitioner is entitled to need not be dwelt upon because the controversy in the petition centres around the question whether change in pay scale of the petitioner can be made to her detriment without hearing her. 4. To answer the question a few relevant events call for a mention. The pay rules were revised by the Government vide SRO 75 in the year 1992 whereas petitioners appointment against a clear vacancy dates back to the year 1993.
4. To answer the question a few relevant events call for a mention. The pay rules were revised by the Government vide SRO 75 in the year 1992 whereas petitioners appointment against a clear vacancy dates back to the year 1993. It is clear that the pay rules were revised prior to her entry in the establishment of the respondents Assuming that the post of draftsman carries a lesser pay scale but then why appointment was offered to her in a higher pay scale when SRO 75 had already occupied the field. Yet another question arises as to why petitioner was confirmed in the year 1997 retrospectively from very inception of her entry in the establishment in the pay scale of Rs. 1600- 2660 (pre revised). No explanation even worth the name has come forward from the respondents. 5. What emerges from the pleadings of the parties is that the petitioner was appointed in the year 1993 against a permanent vacancy in the pay scale of Rs. 1600-2660. Her employer having found her performance satisfactory consequently, confirmation came to be accorded to her services in the above said pay scale. Nonetheless if the respondents contemplate to reduce the petitioners grade on the ground that higher pay scale was given to her due to a mistake they are free to initiate the proceedings but in accordance with procedure established by law and regard being had to the concept of check and balance the petitioner cannot be denuded of the benefit unless an opportunity of hearing is granted to her. In the case in hand the respondents have reduced the pay scale of the petitioner unilaterally and arbitrarily in as much as even show cause notice was not issued and violation of principles of natural justice being obvious, interference by this court is warranted. In taking this view I am fortified by a judicial pronouncement handed down by the apex court in Divisional Superintendent Eastern Railway Dinapur & Ors. v. L.N. Kashri & Ors., AIR 1974 SC 1889. Paras 6 & 7 may be extracted: "6. The respondents were confirmed in the pay scale of Rs. 110-180. The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard.
v. L.N. Kashri & Ors., AIR 1974 SC 1889. Paras 6 & 7 may be extracted: "6. The respondents were confirmed in the pay scale of Rs. 110-180. The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board. 7. The High Court rightly set aside the order. The appeals therefore fail and are dismissed. The appellants will pay costs to the respondents." 6. Applying the ratio of the judgement to the facts and circumstances of this case, the petition is bound to succeed with liberty aforementioned to the respondents. Writ petition is allowed with a direction to the respondents to allow the petitioner to avail of the benefit of the pay scale of Rs. 1600-2660 (pre revised) in terms of order of the respondent-Board bearing No.20-PCB of 1997 dated 07/04/1997. 7. Writ petition is disposed of accordingly along with CMPs. No order as to costs.