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2007 DIGILAW 109 (HP)

MOHAN SINGH v. STATE OF H. P.

2007-04-20

NARINDER SINGH THAKUR

body2007
JUDGEMENT Narinder Thakur, Vice Chairman.:-The applicants in the present original application are aggrieved by the impugned order issued by respondents dated 24.12.2001 (Annexure-1), whereby they were going to make recovery of alleged excess payment of pay and allowances paid to the applicant after being promoted as head Teachers and the pay being fixed under FR 22(1) (a) (i). They are thus praying for the following main reliefs: "(a) Quash the impugned order A-1 issued arbitrarily, mala-fides and illegally by the respondents; (b) Direct the respondents to restore the increments of the applicants in accordance with FR-22(1) (a) (i) as fixed earlier with all the consequential benefits and interest @ 18% pa till the payment of the arrears thereof. (c) Direct the respondents to produce all the relevant documents alongwith their reply for perusal by this Honble Tribunal; (d) Allow the cost of this O.A; (e) Pass such other or directions as deemed fit and proper in favour of the applicants." 2. The brief facts are that the applicant No.1 was initially appointed as JBT on 8.10.1965 and thereafter promoted as Head Teacher on 26.10.1996 and accordingly he was fixed at Rs. 2625/- after giving him the benefit of FR-22(1)(a) (i) in the old pay scale in which the applicant has already reached at Rs. 2480+20. The revised pay scales came into force w.e.f. 1.1.1996 and accordingly his pay was accordingly fixed at Rs. 7880/- in accordance with FR-11(1)(a)(i). Thereafter the pay of the applicant was fixed Rs. 7660/- on 1.1.1996; Rs. 7880/- on 1.10.1996; Rs. 8375/- on 1.1.1997; Rs. 8650 on 1.1.1998 and RS. 8925/- on 1.1.1999. He was further promoted as CHT w.e.f. 28.3.2000. 3. Likewise, the applicant No.2 was initially appointed as JBT in 1965 and he was thereafter promoted as Head Teacher on 29.10.1996. Accordingly his pay was also fixed at Rs. 2410 after giving the benefit under FR-11(1)(a)(1) in the old scale and revised after the new pay scale came into force w.e.f. 1.1.1996. 4. The applicant No.3 was initially appointed as JBT Teacher in 1967 and was promoted as Head Teacher on 8.11.1996. His pay scale was also fixed in accordance with the provisions of FR 22(1)(a)(1) in the old scale and was fixed at Rs. 7444/-. 5. 4. The applicant No.3 was initially appointed as JBT Teacher in 1967 and was promoted as Head Teacher on 8.11.1996. His pay scale was also fixed in accordance with the provisions of FR 22(1)(a)(1) in the old scale and was fixed at Rs. 7444/-. 5. After words the respondent department has issued impugned order Annexure A-1 whereby it has been ordered that the recovery of excess payment will be made from the applicants to the tune of Rs. 25034/- Rs. 25018/- and Rs. 16289/- respectively. The respondent department also stopped the increments granted to the applicants under FR-22(1) (a) (1) arbitrarily and illegally and without affording an opportunity of being heard to the applicant or issuing any show case notice before restoring to impugned illegal and arbitrary action. 6. The impugned action of respondents relating to the recovery of alleged excess payment has been challenged as being illegal and arbitrary. It is further averred that the pay of the applicant has rightly been fixed as they were promoted from the post of JBT to the post of Head Teacher with the responsibilities and duties of greater importance. As such for fixation of their pay, the provision as envisaged under FR-22(I) (a) (1) are attracted. 7. In the reply filed by respondent department it has been averred that the revision of new pay scale has been revised w.e.f. 1.1.1996, the scale of Rs. 4550-7200 has been granted to the JBTs Teacher and the post of Head Teacher category has not been mentioned in the pay revision, which is very much clear from the notification dated 1.9.1998 (R-1). According to the clause-2 of the notification dated 1.9.1998 (revised pay rules) 1998, which has come into force w.e.f. 1.1.1996. Therefore, on promotion of the applicant as Head Teacher (HT), they are not at all entitled to the benefit of FR-22(a) and 22(c) hence vide Annexure-A-1 the recovery had rightly been ordered to be deposited. 8. Arguments have been heard the pleadings perused. 9. It is admitted fact that while ordering to affect the recovery of alleged excess payment the respondent department has issued no prior show cause notice. As such, there has been flagrant violation of natural justice. It is also not disputed that the said benefit was granted to the applicants in pursuance to the rules and not on account of any mis-representation of fact by the applicants. 10. As such, there has been flagrant violation of natural justice. It is also not disputed that the said benefit was granted to the applicants in pursuance to the rules and not on account of any mis-representation of fact by the applicants. 10. So far as the question of non observation of principle of natural justice is concerned, it leaves no doubt to my mind that the same has been violated. Salary, Pension, Gratuity etc. are the property of an individual under Article 300-A of the Constitution of India. The said Article provides that: "No person shall be deprived of his property save by authority of law." 11. Therefore, it was not only essential but also mandatory on the part of the respondents to have issued show cause notice to the appellants before having resort to their impugned action. The Honble Apex Court in AIR 1994 SC 2480 Bhagwan Shukla vs. Union of India and other has held that: "3. We have heard learned counsel for the parties. That the petitioners basic pay had been fixed since 1970 at Rs 190/- p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. .181/- p.m. from Rs. 190/- p.m. in 1991 retrospectively w.e.f. 18.12.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus been a flagrant violate of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. Since that was not done, the order (memorandum) dated 25.7.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. Since that was not done, the order (memorandum) dated 25.7.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant from Rs. 190/- to Rs. 181/- w.e.f. 18.12.1970." 12.In fact the similar observation has been made by the Honble High Court of H.P. in case title as Mahavir Singh vs. Union of India reported in 1997 (2) Shimla Law cases 385. Similarly, the Honble Apex Court has restrained the departments from affecting the recoveries in cases reported in 1995 (2) SCT 421 titled as State of Orissa vs. Adwait Charan Mohanti 1994 (2) SCC 521 title as Shyam Babu vs. Union of India and 1995 Supp. (1) SCC 18 title as Sahib Ram vs. State of Haryana. 13. Admittedly there was no misrepresentation or fraud on the parts of the applicant in getting the payments. It will not only be unfair but also unjust if what has been paid to the applicant long back is taken back from them. The impugned order visited upon the applicants civil consequences and will lead to undue financial hardship and as such cannot be sustained in the eyes of law. 14. So far as the continence of the benefit under FR 22(1) (a) (I) is concerned the applicants are entitled for tr.c same. A bare perusal of the provision contained in the said rule make it amply clear that the initial pay of the Govt. servant who is appointed to the post on a time scale of pay is regulated in the manner that where a Govt. A bare perusal of the provision contained in the said rule make it amply clear that the initial pay of the Govt. servant who is appointed to the post on a time scale of pay is regulated in the manner that where a Govt. servant holding a post other then a tenure post, in a substance or temporary of officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of eligibility conditions as prescribed in the relevant recruitment rules, to another post carrying duties and responsibilities of a greater importance then those attaching to the post held by him, his initial pay in the time scale of higher post shall be fixed at the stage next about the notional arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at this at which such pay has accrued or Rs. 100 only, which ever is more. The catch words in the above previsions are: "To another post carrying duties and responsibilities of greater importance then those attaching to the post held by him." 15. Undoubtedly, the applicants were promoted from the post of JBT to that of Head Master, which is higher post and carries the duties and responsibilities of greater importance. This is why the applicants were earlier granted the benefit under the above provisions of FR. As such, merely because no sale ahs been granted after the revision of pay scale, the duties of the applicants have not granted after the revision of pay scale, the duties of the applicants have not become of lesser importance. In this regard, the Honble Apex Court in his decision report din 1998 (1) SCT 52 titled as State of Punjab vs. Lai Singh has held that the post of Head Teachers carries responsibilities of greater importance and as such they were entitled for one advanced increment in the time scale. 16. In the light of above discussion and law laid down by the Honble Apex Court the present Original Application is allowed and the impugned order Annexure A-1 is quashed. Respondents are directed to restore the increments of the applicants in accordance with FR 22(1) (a) (1) as fixed earlier with all consequential benefits and interest 6% per annum from the due date till the payment thereof. Respondents are directed to restore the increments of the applicants in accordance with FR 22(1) (a) (1) as fixed earlier with all consequential benefits and interest 6% per annum from the due date till the payment thereof. With these observation the Original Application stands finally disposed with no order as to costs. These order will be complied with within two months from this order.