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Madhya Pradesh High Court · body

2004 DIGILAW 1011 (MP)

Ramrajidubey v. State of M. P.

2004-12-14

DIPAK MISRA

body2004
ORDER Dipak Misra, J. 1. The original petitioner, Late Hiralal Dubey, knocked at the doors of Madhya Pradesh Administrative Tribunal (in short 'the Tribunal') in O.A. No. 46/2000 for quashment of the order dated 31-1-2000 and certain other orders passed by the Principal, Government College, Mauganj, District Rewa, and further to issue direction to the respondents to pay him salary continuously, by fixing it at the proper stage. During the pendency of the matter before the Tribunal the original petitioner breathed his last and his legal heirs were brought on record. After abolition of the Tribunal the matter has been transferred to this Court. 2. The facts which are requisite to be stated are that the original petitioner was appointed as PTI in Shaheed Kedar Nath Mahavidyalaya, Mauganj, District, Rewa, on 30th July, 1971. By letter dated 18-6-1974 his case was recommended by the Principal, Government College, Mauganj to the Principal, Tatya Tope Sharirik Prashikshan Mahavidyalaya, Shivpuri recommending his case for training. The original writ petitioner passed the training in Sharirik Shiksha Praman Patra in the year 1975 from the Board of Secondary Education. He completed his graduation in the year 1975 from Awadhesh Pratap Singh University, Rewa. The M.P. Higher Education Grant Commission issued a letter on 17-9-1980 by which it was informed that the petitioner should pass D.P.Ed, by June, 1982. As pleaded, he passed his post-graduation in Sociology in the year 1991 from the aforementioned University. According to the original writ petitioner, Shaheed Kedarnath Mahavidyalaya, Mauganj, District, Rewa, was absorbed by the Government by order dated 31-1-1981. The petitioner submitted an application for grant of permission to avail training in B.P.Ed, on 20th April, 1982 and his application was forwarded to the Competent Authority by the Principal. As set forth the petitioner was sent for training to Rani Durgavati Vishwavidyalaya, Jabalpur, as per Annexure-A/12. It is contended that by letter dated 23-5-1987 the Principal, Government College, Mauganj, ordered to pay the scale of Rs. 700-1600 to the late petitioner as per Annexure-P/13. The UGC payscale of Rs. 2200-4000 was given to him since 1-1-1986. The Principal issued a letter on 13-1-2000 cancelling the order dated 23-5-1987 by which the payscale of Rs. 700-1600 was given with effect from 9-7-1984 and payscale of Rs. 2200-4000 was given to him from 1-1-1986. It has been further stipulated therein that he would be given the payscale of Rs. 2200-4000 was given to him since 1-1-1986. The Principal issued a letter on 13-1-2000 cancelling the order dated 23-5-1987 by which the payscale of Rs. 700-1600 was given with effect from 9-7-1984 and payscale of Rs. 2200-4000 was given to him from 1-1-1986. It has been further stipulated therein that he would be given the payscale of Rs. 250-400 as revised at Rs. 550-900 and revised to Rs. 1700-3000 from 1-1-1986 and further directed recovery of excess payment made towards salary. Further order was passed for recovery of the amount from salary commencing 2-9-1983 to 2-5-1984. It is urged in the petition that as per circular dated 16-10-1990 the original petitioner was entitled to get the payscale of Rs. 2200-4000 but without any rhyme or reason recovery had been directed. The said circular has been brought on record as Annexure-A/17. It is contended that the orders had been passed on the basis of the recommendation of the Principal after due deliberation of facts and, therefore, the reduction of payscale and taking steps for recovery are absolutely unjustified and unsound. The petitioner was given payscale of Rs. 700-1600 from 9-7-1984 and Rs. 2200-4000 from 1-1-1987 as he had fulfilled the requisite qualification of Sports Officer and, therefore, the order directing recovery is unsustainable. 3. A counter affidavit has been filed by the respondents contending, inter alia, that the College in which the original petitioner was appointed was initially taken over by the Government on 13-1-1981. At the time of absorption he was working in the post of Officer, Grade-H and drawing the salary at the payscale of Rs. 250-400 and the paysacle for the aforesaid post was revised from Rs. 250-400 to Rs. 550-900 and thereafter it was revised with effect from 1-1-1986 to Rs. 1740-3000. The original petitioner obtained the qualification of B.P.Ed. In the year 1984 and the Principal of the institution fixed him in the payscale of Rs. 700-1600 and later on revised it to Rs. 22004000, though the petitioner was not entitled to the same. It is putforth that as per instructions contained in Annexure-A/17 the petitioner was entitled to get the payscale of Rs. 1740-3000, as at the time of absorption he did not have requisite educational qualifications for appointment on the post of Sports Officer. 700-1600 and later on revised it to Rs. 22004000, though the petitioner was not entitled to the same. It is putforth that as per instructions contained in Annexure-A/17 the petitioner was entitled to get the payscale of Rs. 1740-3000, as at the time of absorption he did not have requisite educational qualifications for appointment on the post of Sports Officer. After receiving a complaint an enquiry was conducted and thereafter report was submitted to the Government in pursuance whereof the order dated 1-12-1999 was issued by the Government directing the pay of the petitioner should be refixed and the excess amount should be recovered. A copy of the order dated 1-12-1999 has been brought on record as Annexure-R/1. Emphasis has been laid on the fact that as per the Government instructions dated 16-10-1990 the original petitioner was entitled to the payscale of Rs. 1740-3000 and not of Rs. 2200-4000 being a Sports Officer, Grade-H. It is the stand of the respondents that the Principal did not have the competence to revise the payscale, as it amounted to change of grade. The original writ petitioner was a Sports Officer, Grade-H, but the payscale was revised as if he was Sports Officer, Grade- I. It is the further stand of the respondents that the error committed in the year 1987 continued and the original writ petitioner availed the benefits and as steps were taken for rectification of the mistake on 1-12-1989 and, therefore, there was no error on the part of the respondents. It is also pleaded that the petitioner had availed the training without applying for leave and, therefore, he is not entitled to get the benefit for the period as the same was not sanctioned by the comptent authority and it was communicated by Annexure-R/3, 2-9-1983. It is also pleaded that recovery is being done as a measure of rectification and not as a measure of punishment and therefore, prior hearing was not necessary. 4. A rejoinder affidavit has been filed by the petitioner setting forth that he was never informed regarding complaint and inquiry and without hearing him the order had come into existence. It is urged without calling for explanation such an action should not have been taken. 5. 4. A rejoinder affidavit has been filed by the petitioner setting forth that he was never informed regarding complaint and inquiry and without hearing him the order had come into existence. It is urged without calling for explanation such an action should not have been taken. 5. An additional return has been filed by the respondents putting forth the stand that it was a case of erroneous fixation and, therefore, concept of natural justice would not be applicable and the respondents were accordingly justified in rectifying the mistake and passing order for recovery of the amount which was unduly paid to the petitioner. As regards the period when the petitioner was undergoing B.P.Ed. Training a reference has been made to the letter which would categorically and unequivocally state that the said period of training would be treated as leave and not spent on duty. It is the stand of the respondents that in the additional return that when the permission was granted with a specific condition the petitioner cannot claim advantage and if any money had been paid, recovery of the same cannot be resisted by the petitioner. 6. I have heard Mr. R. K. Tiwari, Learned Counsel for the petitioners and Mr. S. K. Rai, learned Govt. Advocate for the State. At this juncture it is apposite to mention that at the time of admission the Tribunal had directed stay of recovery of the amount on 4-4-2001. The Tribunal passed the following order : After perusal of record it appears that the Private College in which the applicant was working has been taken over by the State Government on 13-1-1981 and services of the applicant absorbed in the State Government from the said date. Applicant has not filed any document by showing that what pay he was drawing at that time and in what pay scale he is working. It is also not clear on which pay scale he absorbed in the Govt, service. Applicant's counsel requested for time to file the document in this regard. Time granted. Applicant also requested that the respondents be also directed to file the document with regard to absorption of the services of the College employees where applicant was working. Respondents are also directed to call for the record in this regard. 7. Despite the aforesaid order nothing has been produced by either of the parties. Time granted. Applicant also requested that the respondents be also directed to file the document with regard to absorption of the services of the College employees where applicant was working. Respondents are also directed to call for the record in this regard. 7. Despite the aforesaid order nothing has been produced by either of the parties. The seminal question that arises for consideration is whether the petitioner should be directed to be afforded opportunity of being heard. The petitioner was given the benefit of the pay scale on the basis of the recommendation by the Principal with effect from 1-1-1986 and that was done way back in 1988. The arrears had been paid and the pay scale was fixed. Thereafter enquiry had been conducted behind the back of the original writ petitioner and the order came to be passed in the year 2000. It is well settled in law when a particular advantage has been conferred the same cannot be taken away and an adverse civil consequence cannot be visited without following the principles of natural justice. I may hasten to clarify there are certain exceptions to the aforesaid rule but in the present case, such exception cannot be made applicable. It is not a case where the alleged mistake was rectified before it was concretised. It is also not a case where the matter is so crystal clear that the petitioner should not have been afforded opportunity of hearing and the enquiry could be dispensed with. It is not a case like mass copying or mass cancellation where the Courts have taken a different view. It is also not a matter where there has been practicing of fraud by the beneficiaries. While so saying, I am not inclined to state that always in such cases the concept of audi alteram partem is not attracted. I am only disposed to say that in the present case, the petitioner was conferred the benefit on the basis of the recommendations of the Principal and whether he had the competence or not and whether the original petitioner was entitled to it or not required adjudication. He should have been afforded opportunity of hearing. Quite apart from the above, if the petitioner had no role in getting the higher payscale there cannot be a question of recovery. He should have been afforded opportunity of hearing. Quite apart from the above, if the petitioner had no role in getting the higher payscale there cannot be a question of recovery. In a given case when an incumbent continues after his date of retirement and there is suppression by the petitioner he cannot take a somersault and plead that when he had already worked he would be entitled to salary. This is because, it is based on certain facts within the personal knowledge of an incumbent and if he has deliberately not disclosed he cannot plead ignorance. But in the case at hand fixation of higher pay scale was done by the authorities and, therefore, there should not be any recovery for the same. Accordingly, direction for recovery of the payment made to the original petitioner on the enhanced payscale stands quashed. 8. The next aspect that arises for adjudication relates to the period the petitioner had undergone training. Allegation is that he had been given some amount. On a perusal of the documents filed by the respondents, it is noticeable that the said period was not treated as duty. Hence, I am inclined to think that in respect of the said period the State Government shall take a fresh decision inasmuch as the petitioner has breathed his last during the pendency of this petition which warrants sympathetic consideration by the employer. 9. The next facet that arises as a logical corollary pertains to proper fixation of family pension. In view of what has been stated above, the respondents may afford opportunity of hearing to the present petitioners who can choose one of their representatives to participate in the hearing. If eventually it is found that on the date the pay scale of the original petitioner was properly fixed, his family pension would be accordingly fixed. I am inclined to give such a direction as the documents directed to be filed by the Tribunal had not also been filed before this Court and cause of justice would be best subserved if there would be a proper enquiry, in the presence of legal heirs. I am inclined to give such a direction as the documents directed to be filed by the Tribunal had not also been filed before this Court and cause of justice would be best subserved if there would be a proper enquiry, in the presence of legal heirs. I may hasten to clarify, it will also be within the discretion of the State Government to dispense with the enquiry, taking into consideration the premature death of the original writ petitioner and may fix the family pension, taking into consideration the last pay drawn by the original petitioner. Proper exercise in this regard shall be completed within a period of four months from the date of receipt of the order passed today. 10. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.