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Rajasthan High Court · body

2005 DIGILAW 39 (RAJ)

Rameshwar Lal Panwar v. State of Raj.

2005-01-05

SUNIL KUMAR GARG

body2005
Honble GARG, J.–The petitioner has filed the present writ petition under Article 226/227 of the Constitution of India on 24.8.2001 against the respondents with a prayer that the impugned order dtd. 8.11.2001 (Annex. 3) passed by the respondent No. 2 (Superintendent, Associated Groups of Hospitals, Jodhpur) by which earlier order dtd. 9.11.1988 (Annex. 2) passed by the respondent No. 2 (Superintendent, Associated Groups of Hospitals, Jodhpur) by which the petitioner was granted pay scale No. 6 in place of pay scale No. 3 was cancelled, be quashed and set aside. (2). The facts of the case as put forward by the petitioner are as under: (i) That the petitioner was initially appointed on the post of Tailor through order dtd. 13.2.1981 (Annex. 1). He was appointed in the pay scale of Rs. 250-360 (Pay Scale No. 3). (ii) Further case of the petitioner is that services of the petitioner were confirmed through order dtd. 9.12.1983. (iii) Further case of the petitioner is that he was possessing qualification upto 8th standard plus commercial diploma from Mumbai and ITI and the said qualification was prescribed in the Rajasthan Subordinate Services (Recruitment to other Service Conditions) Rules, 1960 (hereinafter referred to as the Rules of 1960). (iv) Further case of the petitioner is that the through order dtd. 9.12.1988 (Annex. 2) passed by the respondent No. 2 (Superintendent, Associated Groups of Hospitals, Jodhpur), the petitioner was given pay scale of Rs. 820-1520 (pay scale No. 6) on the newly created post because he was possessing all the requisite qualifications prescribed in the Rules of 1960. (iv) Further case of the petitioner is that all of a sudden, the order dtd. 8.11.2001 (Annex. 3) was passed by the respondent No. 2 (Superintendent) by which the order dtd. 9.12.1998 (Annex. 2) was cancelled by which the petitioner was granted the pay scale No. 6 and instead of pay scale No. 6, the petitioner was granted pay scale No. 3. Hence, this writ petition with the abovermentioned prayer. (3). In this writ petition, following submissions have been made by the learned counsel for the petitioner: (i) That before passing the impugned order dtd. 8.11.2001 (Annex. 3), no notice or opportunity of hearing was given to the petitioner and thus, the same is wholly illegal being passed in violation of principles of natural justice and on that ground alone, the impugned order dtd. 8.11.2001 (Annex. 8.11.2001 (Annex. 3), no notice or opportunity of hearing was given to the petitioner and thus, the same is wholly illegal being passed in violation of principles of natural justice and on that ground alone, the impugned order dtd. 8.11.2001 (Annex. 3) is liable to be quashed and set aside. (ii) That the petitioner was possessing all the requisite qualifications for the post of Tailor and he was granted the pay scale No. 6 way back in the year 1988, but all of a sudden after a lapse of 13 years, the order dtd. 8.11.2001 (Annex. 3) was passed by which the order dtd. 9.12.1988 (Annex. 2) by which the petitioner was granted pay scale No. 6, was cancelled and thus, the order dtd. 8.11.2001 (Annex. 3) is highly arbitrary, unreasonable, unfair and violative of Articles 14 and 16 of the Constitution of India as there was no fault on the part of the petitioner when he was given the pay scale No. 6 through order dtd. 9.12.1988 (Annex. 2) and thus, the order dtd. 8.11.2001 (Annex. 3) cannot be sustained and is liable to be quashed and set aside. (4). Reply to the writ petition was filed by the respondents and their case is that one Smt. Kamla who was senior to the petitioner filed a S.B. Civil Writ Petition No. 3073/1999 before this Court stating that she was senior to the petitioner and as such, she was also entitled to get the pay scale No. 6 which was being paid to the petitioner and when the matter was re-examined by the respondents, then it came to the light that petitioner was wrongly sanctioned pay scale No. 6, though the petitioner should have been fixed in the pay scale No. 3 and hence the impugned order dtd. 8.11.2001 (Annex. 3) was rightly passed and the order dtd. 9.12.1988 (Annex. 2) was rightly cancelled. Further case of the respondents is that in pursuance of order dtd. 8.11.2001 (Annex. 3), the pay of the petitioner was revised and the petitioner was fixed in the pay scale No. 3 through order dated 9.3.2002 (Annex. R/2). It has been further submitted by the respondents that the order dtd 8.11.2001 (Annex. 3) was passed in view of order dtd. 10.9.2001 (Annex. R/1) and hence no case was made out and the writ petition be dismissed. (5). Heard. (6). R/2). It has been further submitted by the respondents that the order dtd 8.11.2001 (Annex. 3) was passed in view of order dtd. 10.9.2001 (Annex. R/1) and hence no case was made out and the writ petition be dismissed. (5). Heard. (6). There is no dispute on the point that the petitioner was initially appointed on the post of Tailor through order dtd. 13.2.1981 (Annex. 1) in the pay scale of Rs. 250-360 (pay scale No. 3). (7). There is also no dispute on the point that the petitioner was possessing all the requisite qualification for getting the pay scale No. 6. (8). There is also no dispute on the point that through order dtd. 9.12.1988 (Annex. 2), the petitioner was fixed in pay scale No. 6. (9). There is also no dispute on the point that since the date of passing of order dtd. 9.12.1988 (Annex. 2), the petitioner was getting pay scale No. 6 and his pay scale was revised from time to time as per revision of pay scales made by the State Government. (10). There is also no dispute on the point that through order dtd. 8.11.2001 (Annex. 3), the order dtd. 9.12.1988 (Annex. 2) was cancelled with retrospective effect on the ground that the petitioner should have been fixed in the pay scale No. 3 and he was wrongly fixed in pay scale No. 6 through order dtd. 9.12.1988 (Annex. 2). (11). There is also no dispute on the point that the order dtd. 8.11.2001 (Annex. 3) was passed in view of order dtd. 10.9.2001 (Annex. R/1). (12). There is also no dispute on the point that before passing the order dtd. 8.11.2001 (Annex. 3), no notice or opportunity of hearing was given to the petitioner. (13). There is also no dispute on the point that the petitioner was granted the pay scale No. 6 through order dtd. 9.12.1988 (Annex. 2) without any fault on the part of the petitioner, but the mistake was committed by the respondents themselves. (14). The question for consideration is whether in the facts and circumstances just mentioned above, the impugned order dtd. 8.11.2001 (Annex. 3) by which the order dtd. 9.12.1988 (Annex. 2) was cancelled can be sustained or not. Point No. 1 (15). The case of learned counsel for the petitioner is that before passing the impugned order dtd. 8.11.2001 (Annex. (14). The question for consideration is whether in the facts and circumstances just mentioned above, the impugned order dtd. 8.11.2001 (Annex. 3) by which the order dtd. 9.12.1988 (Annex. 2) was cancelled can be sustained or not. Point No. 1 (15). The case of learned counsel for the petitioner is that before passing the impugned order dtd. 8.11.2001 (Annex. 3) no notice or opportunity of hearing was afforded to the petitioner and therefore, in this case, principles of natural justice have been violated by the respondents and on that ground alone, the impugned order dtd. 8.11.2001 (Annex. 3) is liable to be quashed and set aside. Principles of Natural Justice (16). Once, it is acknowledged that non-arbitrariness is an ingredient of Article 14 of the Constitution of India pervading the entire realm of State action governed by Article 14, it has come to be established as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. (17). This requirement of natural justice is applicable not only to judicial or quasi judicial orders, but also to administrative orders affecting prejudically the party in question, unless it is expressly excluded by a law which is otherwise valid. (18). Broadly speaking, the natural justice is an ingredient of reasonableness. (19). In the present case, as already stated above, there is no dispute on the point that before passing the impugned order dtd. 8.11.2001 (Annex. 3), no notice or opportunity of hearing was ever given to the petitioner. (20). Therefore, since before passing the impugned order dtd. 8.11.2001 (Annex. 3), no notice or opportunity of hearing was afforded to the petitioner, therefore, this fact itself shows violation of principles of natural justice on the part of the respondents and in view of this, the impugned order dtd. 8.11.2001 (Annex. 3) cannot be sustained and is liable to be quashed and set aside as the same is in direct conflict with the principles of natural justice. (21). Apart from this, once the petitioner was given the pay scale No. 6 of Tailor as mentioned in the order dtd. 9.12.1988 (Annex. 8.11.2001 (Annex. 3) cannot be sustained and is liable to be quashed and set aside as the same is in direct conflict with the principles of natural justice. (21). Apart from this, once the petitioner was given the pay scale No. 6 of Tailor as mentioned in the order dtd. 9.12.1988 (Annex. 2) and the same was revised from time to time by the Department as per the revision of pay scales made by the State Government and the same was being given to him continuously for last 13 years, therefore, the same could not be withdrawn without giving notice or opportunity of hearing to the petitioner because it also affects civil right of the petitioner. (22). In Ramesh Kumar Sharma vs. State of Rajasthan and Ors. (WLR 1997 Raj. 55) = (RLW 1997(1) Raj. 595), this Court observed that it is well settled law that no order effecting the civil right of a person can be passed without giving an opportunity to the official. The principles of natural justice are the cardinal principles which are to be complied with by the State Authorities even to modify an order howsoever erroneous or illegal that order might be, if that order had bestowed any benefit on the official. (23). In Bhagwan Shukla vs. Union of India and Ors. ( AIR 1994 SC 2480 ), the Honble Supreme Court observed that if basic pay of any employee is reduced with retrospective effect and employee was not granted opportunity to show cause, in such circumstances, there would be flagrant violation of the principles of natural justice and order of reducing pay was set aside. (24). In Lakshmi Narayan Mukhopadhyay vs. Union of India and Ors. (JT 2002 (5) SC 355), the amount ordered to be recovered from gratuity was not allowed to be recovered on the ground that no opportunity of hearing was given to the employee. (25). Thus, it is held that since before passing the impugned order dtd. 8.11.2001 (Annex. 3), no notice or opportunity of hearing was given to the petitioner, therefore, the impugned order dtd. 8.11.2001 (Annex. 3) is in violation of the principles of natural justice contained in maxim ``audi alteram partem and thus, the same cannot be sustained and is liable to be quashed and set aside on this ground alone. Point No. 2 (26). 3), no notice or opportunity of hearing was given to the petitioner, therefore, the impugned order dtd. 8.11.2001 (Annex. 3) is in violation of the principles of natural justice contained in maxim ``audi alteram partem and thus, the same cannot be sustained and is liable to be quashed and set aside on this ground alone. Point No. 2 (26). The case of the learned counsel for the petitioner is that the petitioner was possessing all the qualification for the post of Tailor and he was granted the pay scale No. 6 way back in the year 1988, but all of a sudden after a lapse of 13 years, the order dtd. 8.11.2001 (Annex. 3) was passed by which the order dtd. 9.12.1988 (Annex. 2) by which the petitioner was granted pay scale No. 6, was cancelled and thus, the order dtd. 8.11.2001 (Annex. 3) is highly arbitrary, unreasonable, unfair and violative of Articles 14 and 16 of the Constitution of India and furthermore there was no fault on the part of the petitioner when he was given the pay scale No. 6 through order dtd. 9.12.1988 (Annex. 2) and thus, the order dtd. 8.11.2001 (Annex. 3) cannot be sustained and is liable to be quashed and set aside. (27). As already stated above, there is no dispute on the point that there was no fault on the part of the petitioner when he was given pay scale No. 6 vide order dtd. 9.12.1988 (Annex. 2). In other words, the pay scale No. 6 was given to the petitioner without there being any fault on his part. (28). In Shyam Babu Verma and Ors. vs. Union of India and Ors. ( 1994 (2) SCC 521 ), the Honble Supreme Court has held that since the petitioners received the higher scale due to non fault of theirs, it shall only be just and proper note to recover any excess amount already paid to them. (29). In Sahib Ram vs. State of Haryana and Ors. (1995 Supp. (1) SCC 18), the Honble Supreme Court restrained the recovery of the payment already made to the appellant, as it was not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. (30). (30). In Nand Lal and Ors. vs. Rajasthan State Electricity Board and Ors. (RLR 1999 (2) 707) = (RLW 2000(1) Raj. 1 ), this Court relying on the aforesaid judgments of the Honble Supreme Court has held that if a higher pay scale has erroneously been given to an employee long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him. (31). In another decision in Shrawan vs. State of Rajasthan and Ors. (WLR 1998 Raj. 443), where the petitioner was retired from service and his pension was also fixed and later on the Department felt that by mistake he was wrongly paid more amount by way of pension and the Department passed order for recovery of excess payment from the gratuity of the petitioner without giving an opportunity of hearing and in such circumstances, this Court set aside the order of recovery holding that such recovery order could have not been passed without extending opportunity of hearing. (32). Thus, looking to the above law laid down by the Honble Supreme Court as well as by this Court and looking to the entire facts and circumstances of the present case, since there was no fault on the part of the petitioner when he was given pay scale No. 6 through order dtd. 9.12.1988 (Annex. 2) and he had been drawing the salary in the pay scale No. 6 since the date of passing of order dtd. 9.12.1988 (Annex. 2) and his pay has been revised from time to time as per the revision of pay scales made by the State Government and he received the benefit of pay scale No. 6 due to no fault on his part, therefore, in these circumstances, it would be just and proper to allow the petitioner to retain such benefit. Further more, since the order dtd. 8.12.2001 (Annex. 3) was passed without giving notice and without affording an opportunity of hearing to the petitioner, therefore, the same cannot be sustained. (33). For the reasons mentioned above, this writ petition deserves to be allowed and the impugned order dtd. 8.12.2001 (Annex. 3) by which the order dtd. 9.11.1988 (Annex. Further more, since the order dtd. 8.12.2001 (Annex. 3) was passed without giving notice and without affording an opportunity of hearing to the petitioner, therefore, the same cannot be sustained. (33). For the reasons mentioned above, this writ petition deserves to be allowed and the impugned order dtd. 8.12.2001 (Annex. 3) by which the order dtd. 9.11.1988 (Annex. 2) was cancelled, cannot be sustained and is liable to be set aside as the same has been passed in violation of the principles of natural justice and further there was no fault on the part of the petitioner in receiving the pay scale No. 6 through order dtd. 9.11.1988 (Annex. 2). Accordingly, the present writ petition is allowed and the impugned order dtd. 8.12.2001 (Annex. 3) passed by the Superintendent, Associated Group of Hospitals,) is quashed and set aside. No order as to costs.