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Rajasthan High Court · body

2005 DIGILAW 54 (RAJ)

Achalchand Sen v. State of Raj.

2005-01-06

SUNIL KUMAR GARG

body2005
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondent on 15.7.2003 with the prayer that by an appropriate writ, order of direction, the order dated 19.3.2003 (Annex. 7) passed by the respondent No.2 Dy. Director (Male), Secondary Education, Jodhpur by which the earlier order Annex. 6 dated 13.5.1997 granting selection grade to the petitioner on completion of 18 years service was revised in the manner that selection grade was granted to the petitioner from 19.11.1999 instead of 27.2.1997 and order dated 28.3.2003 (Annex. 8) passed by the respondent No. 4. Headmaster, Government Senior Secondary School, Dayalpura, Jalore by which recovery of sum of Rs. 21,418/- was ordered to be made from the gratuity of the petitioner, be quashed and set aside. (2). The case of the petitioner as put forward by him in this writ petition is as follows:- The petitioner was appointed as LDC vide order Annex. 1 dated 23.2.1979 and in pursuance of the said order Annex. 1, he joined his duties on 27.2.1979 through Annex. 2. The further case of the petitioner is that he was granted annual grade increments on passing of type test vide order Annex. 3 dated 13.4.1981. The further case of the petitioner is that he also passed performance test in the year 1981 and the copy of the mark sheet is Annex. 4. The further case of the petitioner is that after passing the performance test, he was confirmed on the post of LDC with effect from 19.11.1981 through order Annex. 5 dated 17.3.1982. The further case of the petitioner is that the State Government issued Notification on 25.1.1992 for grant of selection grade to its employees on completion of 9, 18 and 27 years of service and in pursuance of the said Notification dated 25.1.1992, he alongwith other persons was granted selection grade on completion of 18 years satisfactory service with effect from 27.2.1997 through order Annex. 6 dated 13.5.1997. According to the petitioner, his services for the purpose of grant of selection grade were counted from the date of his initial appointment i.e. 27.2.1979 and not from the date of passing of the performance test on 19.11.1981. 6 dated 13.5.1997. According to the petitioner, his services for the purpose of grant of selection grade were counted from the date of his initial appointment i.e. 27.2.1979 and not from the date of passing of the performance test on 19.11.1981. The further case of the petitioner is that thereafter, the Notification dated 25.1.1992 was amended by the State Government through order dated 17.2.1998 and in pursuance of the said order dated 17.2.1998, through order Annex. 7 dated 19.3.2003, the earlier order Annex. 6 dated 13.5.1997 granting selection grade to the petitioner on completion of 18 years service was revised in the manner that selection grade was granted to the petitioner from 19.11.1999 instead of 27.2.1997. According to the petitioner, the order Annex. 7 dated 19.3.2003 was passed after calculating the services of the petitioner from the date of passing performance test and not from the date of initial appointment. Thereafter, in pursuance of the order Annex. 7 dated 19.3.2003, the respondent No. 4 Headmaster, Government Senior Secondary School, Dayalpura, Jalore vide order Annex. 8 dated 28.3.2003 ordered for deduction of sum of Rs. 21,418/- from the gratuity of the petitioner. In this petition, both the aforesaid orders Annex. 7 dated 19.3.2003 and Annex. 8 dated 28.3.2003 have been challenged by the petitioner on various grounds and the main grounds are as follows:- (i) That before passing the impugned orders Annex. 7 and Annex. 8, no notice or opportunity of hearing was given to the petitioner and thus, they are wholly illegal being passed in violation of the principles of natural justice and on that ground alone, both the impugned orders Annex. 7 and Annex. 8 are liable to be quashed and set aside. (ii) That when the selection grade was granted to the petitioner on completion of 18 years service w.e.f. 27.2.1997 through order Annex. 6 dated 13.5.1997, there was no fault on the part of the petitioner and thus, if that order Annex. 6 was revised later on by the respondents without giving an opportunity of hearing to the petitioner, it would be highly arbitrary and unreasonable exercise on the part of the respondents. (iii) That as per terms of the Notification dated 25.1.1992, service of 9, 18 and 27, as the case may be, should be counted from the date of initial appointment and therefore, the petitioner was rightly granted selection grade through order Annex. (iii) That as per terms of the Notification dated 25.1.1992, service of 9, 18 and 27, as the case may be, should be counted from the date of initial appointment and therefore, the petitioner was rightly granted selection grade through order Annex. 6 after counting his services from the date of initial appointment and subsequent revision of that order Annex. 6 through order Annex. 7 in pursuance of amended order dated 17.2.1998 cannot be sustained as subsequent amendment made vide order dt. 17.2.1998 cannot deprive the petitioner to enjoy the benefit of selection grade already granted to him in pursuance of order dated 25.1.1992. In this respect, he has placed reliance on the decision of this Court in State of Rajasthan and ors. vs. Ram Kishan & Anr. (RLR 2002 (2) 711) = (RLW 2003(2) Raj. 726). A reply to the writ petition was filed by the respondents and it was submitted by them that as per amendment order dated 17.2.1998 issued by the State Government, for granting selection grade, the service of 9, 18 and 27 years, as the case may be, should be counted from the date of passing of performance test and therefore, if earlier order Annex. 6 was revised in pursuance of the order dated 17.2.1998, no illegality or irregularity has been committed by the respondents. It has been further submitted by the respondents that while passing the impugned order Annex. 7 and Annex. 8, there was no need to give opportunity of hearing to the petitioner and therefore, principles of natural justice were not violated by the respondents. Hence, no interference is called for and this writ petition deserves to be dismissed. (3). I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record. (4). There is no dispute on the point that the petitioner was appointed as LDC vide order Annex. 1 dated 23.2.1979 on the recommendations of the Selection Committee and in pursuance of the said order Annex. 1, he joined his duties on 27.2.1979 through Annex. 2. (5). There is also no dispute on the point that the petitioner passed performance test on 19.11.1981, which is evident from the mark sheet Annex. 4 and thereafter, he was confirmed on the post of LDC with effect from 19.11.1981 through order Annex. 5 dated 17.3.1982. (6). 1, he joined his duties on 27.2.1979 through Annex. 2. (5). There is also no dispute on the point that the petitioner passed performance test on 19.11.1981, which is evident from the mark sheet Annex. 4 and thereafter, he was confirmed on the post of LDC with effect from 19.11.1981 through order Annex. 5 dated 17.3.1982. (6). There is also no dispute on the point that the State Government issued Notification on 25.1.1992 for grant of selection grade to its employees on completion of 9, 18 and 27 years of service and para 3 of the said Notification reads as follows:- ``3. The service of nine, eighteen and twenty seven years, as the case may be, shall be counted from the date of first appointment in the existing cadre/service in accordance with the provisions contained in the recruitment rules. (7). There is also no dispute on the point that in pursuance of the said Notification dated 25.1.1992, the petitioner alongwith other persons was granted selection grade on completion of 18 years satisfactory service with effect from 27.2.1997 through order Annex. 6 dated 13.5.1997 and while granting selection grade to the petitioner through order Annex. 6, the services of the petitioner were counted from the date of his initial appointment i.e. 27.2.1979. (8). There is also no dispute on the point that thereafter, amended order dated 17.2.1998 was issued by the State Government in which a condition was imposed that period of nine, eighteen and twenty seven years, as the case may be, shall be counted from the date of passing performance test. (9). There is also no dispute on the point that in pursuance of the amended order dated 17.2.1998 issued by the State Government, the impugned order Annex. 7 dated 19.3.2003 was issued by which the earlier order Annex. 6 dated 13.5.1997 granting selection grade to the petitioner on completion of 18 years service was revised in the manner that selection grade was granted to the petitioner from 19.11.1999 instead of 27.2.1997, after calculating the services of the petitioner from the date of passing performance test and not from the date of initial appointment. Thereafter, in pursuance of the order Annex. 7 dated 19.3.2003, the respondent No. 4 Headmaster, Government Senior Secondary School, Dayalpura Jalore vide order Annex. 8 dated 28.3.2003 ordered for deduction of sum of Rs. 21,418/- from the gratuity of the petitioner. (10). Thereafter, in pursuance of the order Annex. 7 dated 19.3.2003, the respondent No. 4 Headmaster, Government Senior Secondary School, Dayalpura Jalore vide order Annex. 8 dated 28.3.2003 ordered for deduction of sum of Rs. 21,418/- from the gratuity of the petitioner. (10). There is also no dispute on the point that before passing both impugned order Annex. 7 dated 19.3.2003 and Annex. 8 dated 28.3.2003, no notice or opportunity of hearing was given to the petitioner. (11). There is also no dispute on the point that there was no fault on the part of the petitioner when he was granted selection grade on completion of 18 years of service w.e.f. 27.2.1997 through order Annex. 6 dated 13.5.1997. (12). There is also no dispute on the point that the petitioner was superannuated on 31.7.2002 and thus, he is a retired employee. (13). The question for consideration is whether in the facts and circumstances mentioned above, the impugned order Annex. 7 dated 19.3.2003 by which earlier order Annex. 6 dated 13.5.1997 was revised and the petitioner was granted selection grade w.e.f. 19.11.1999 instead of 27.2.1997, after counting the services of the petitioner from the date of passing performance test and not from the date of initial appointment and Annex. 8 dated 28.3.2003 by which recovery of sum of Rs. 21,418/- was ordered to be made from the gratuity of the petitioner, can be sustained or not. Point No. 1. (14). The case of the learned counsel for the petitioner is that before passing both impugned orders Annex. 7 and Annex. 8, 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, both the impugned orders Annex. 7 and Annex. 8 are liable to be quashed and set aside. Principles of natural justice (15). 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. (16). (16). 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. (17). Broadly speaking, the natural justice is an ingredient of reasonableness. (18). In the present case, as already stated above, there is no dispute on the point that before passing the impugned orders Annex. 7 revising the earlier order Annex. 6 of granting selection grade to the petitioner by counting services of the petitioner from the date of passing performance test and not from the date of initial appointment and Annex. 8 ordering recovery from the gratuity of the petitioner, no notice or opportunity of hearing was even given to the petitioner and, therefore, this fact itself shows violation of principles of natural justice on the part of the respondents and in view of this, both impugned orders Annex. 7 and Annex. 8 cannot be sustained and liable to be set aside as they are in direct conflict with the principles of natural justice. (19). Apart from this, once the petitioner was given the selection grade on completion of 18 years service w.e.f. 27.2.1997 through Annex. 6 dated 13.5.1997 after counting his services from the date of initial appointment and the same was being given to him continuously for the last more than five years, therefore, the same could not withdrawn without giving notice or opportunity of hearing to the petitioner because it also affects civil right of the petitioner. (20). In Ramesh Kumar Sharma vs. State of Rajasthan and Ors. (WLR 1997 Raj. 55), 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 by, if that order had bestowed any benefit on the official. (21). In Bhagwan Shukla vs. Union of India and Ors. 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 by, if that order had bestowed any benefit on the official. (21). 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. (22). In Lakshmi Narayan Mukhopadhyay vs. Union of India and Ors. (JT 2002 (5) SC 355) = (RLW 1997 (1) Raj. 595), 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. (23). Thus, it is held that since before revising the order Annex. 6 dated 13.5.1997 granting selection grade w.e.f. 27.2.1997 through order Annex. 7 dated 19.3.2003 and ordering recovery of sum of Rs. 21,418/- from the gratuity of the petitioner through order annex. 8 dated 28.3.2003, no notice or opportunity of hearing was given to the petitioner, therefore, the impugned order Annex. 7 and Annex. 8 are in violation of the principles of natural justice contained in maxim `audi alteram partem and thus, the same cannot be sustained and liable to be quashed and set aside on that ground alone. Point No. 2 (24). The case of the learned counsel for the petitioner is that when the selection grade was granted to the petitioner on completion of 18 years service w.e.f. 27.2.1997 through order Annex. 6 dated 13.5.1997, there was no fault on the part of the petitioner and thus, if that order Annex. 6 was revised later on by the respondents without giving an opportunity of hearing to the petitioner, it would be highly arbitrary and unreasonable exercise on the part of the respondents. (25). 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 selection grade on completion of 18 years w.e.f. 27.2.1997 through order Annex. 6 dated 13.5.1997. (26). In Shyam Babu Verma and Ors. vs. Union of India and Ors. (25). 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 selection grade on completion of 18 years w.e.f. 27.2.1997 through order Annex. 6 dated 13.5.1997. (26). 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 no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. (27). 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. (28). In Nand Lal and Ors. vs. Raj. 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. (29). In another decision in Shrawan vs. State of Raj. And Ors. (WLR 1998 Raj. 423), 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. (30). (30). 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 granted selection grade on completion of 18 years service w.e.f. 27.2.1997 through order Annex. 6 dated 13.5.1997 and he has been drawing the salary of selection grade since then and he was granted selection grade in pursuance of the Notification of the State Government dated 25.1.1992 and he received the benefit of selection grade 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. Furthermore, since the recovery has been ordered to be made from the petitioner without giving notice and without affording an opportunity of hearing to the petitioner, therefore, the same cannot be sustained. Point No. 3. (31). So far as third point is concerned, it may be stated here that in the Notification dated 25.1.1992 issued by the State Government, there is a clear averment that service of 9, 18 and 27 years, as the case may be, shall be counted from the date of first appointment and since the petitioner was appointed vide order dated 23.2.1979 (Annex. 1) and joined his services on 27.2.1979, therefore, for the purpose of granting selection grade, his services should have been counted from the date of initial appointment. Apart from this, appointment order of the petitioner dated 23.2.1979 (Annex. 1) reveals that he was appointed on the recommendation of selection Committee and his appointment was temporary/adhoc for a fixed period till the availability of selected candidates by the RPSC. Their Lordships of the Supreme Court in Surendra Kumar Gyani vs. State of Rajasthan ( 1992 (4) SCC 464 ) while considering the case of the employees observed in para 15 thus:- ``It is reasonably expected that State Government should give an anxious and sympathetic consideration to the appellant and the petitioners in the special leave petitions in the matter of appointment in the available vacancies according to the seniority and the length of service rendered by such persons as daily rated Lower Division Clerks in the said Insurance and Provident Fund Department by making appropriate provisions. (32). (32). Since as per terms of the Notification dated 25.1.1992, service of 9, 18 and 27, as the case may be, should be counted from the date of initial appointment, therefore, the petitioner was rightly granted selection grade through order Annex. 6 dated 13.5.1997, after counting his services from the date of initial appointment i.e. 27.2.1979. Subsequent revision of that order Annex. 6 through order Annex. 7 dated 19.3.2003 in pursuance of subsequent amendment, which was made retrospectively through order dated 17.2.1998 cannot be sustained, as subsequent amendment made vide order dt. 17.2.1998 cannot deprive the petitioner to enjoy the benefit of selection grade already granted to him in pursuance of the Notification dated 25.1.1992 issued by the State Government. In this respect, the decision of this Court in the case of Ram Kishan (supra) may be referred to and relied upon, where similar question arose and answered in the manner that for grant of selection grade, services shall be counted from the date of initial appointment and not from the date of passing performance test. Hence, the revision of order Annex. 6 dated 13.5.1997 through impugned order Annex. 7 dated 19.3.2003 by granting selection grade after taking into consideration the services of the petitioner from the date of passing performance test cannot be sustained and liable to be quashed and set aside. (33). For the reasons stated above, this writ petition deserves to be allowed and the impugned order dated 19.3.2003 (Annex. 7) passed by the respondent No.2 Dy. Director (Male), Secondary Education, Jodhpur by which the earlier order Annex. 6 dated 13.5.1997 granting selection grade to the petitioner on completion of 18 years service was revised in the manner that selection grade was granted to the petitioner from 19.11.1999 instead of 27.2.1997 and order dated 28.3.2003 (Annex. 8) passed by the respondent No. 4 Headmaster, Government Senior Secondary School, Dayalpura, Jalore by which recovery of sum of Rs. 21,418/- was ordered to be made from the gratuity of the petitioner, are liable to be quashed and set aside as the same have 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 selection grade through order Annex. 6 dated 13.5.1997 and further, he was rightly granted selection grade through order Annex. 6 dated 13.5.1997 and further, he was rightly granted selection grade through order Annex. 6 after counting his services from the date of initial appointment i.e. 27.2.1979. Accordingly, this writ petition filed by the petitioner is allowed and the impugned order dated 19.3.2003 (Annex. 7) passed by the respondent No. 2 Dy. Director (Male), Secondary Education, Jodhpur by which the earlier order Annex. 6 dated 13.5.1997 granting selection grade to the petitioner on completion of 18 years service was revised in the manner that selection grade was granted to the petitioner from 19.11.1999 instead of 27.2.1997 and order dated 28.3.2003 (Annex. 8) passed by the respondent No. 4 Headmaster, Government Senior Secondary School, Dayalpura, Jalore by which recovery of sum of Rs. 21,418/- was ordered to be made from the gratuity of the petitioner, are quashed and set aside.