Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 2061 (PAT)

Kishor Prasad v. State of Bihar

2011-09-26

T.MEENA KUMARI, VIKASH JAIN

body2011
Oral (Per: Hon'ble Justice Smt. T. Meena Kumari) The present appeal has been filed against the order passed by the learned Single Judge as also the order passed by the University, which are Annexure-3 to the main writ application followed by Annexure-9, on the ground that those orders have been passed without affording any opportunity of hearing to the deceased-writ petitioner-appellant violating the principles of natural justice. But, however, learned Single Judge has observed that calculation was made hurriedly in view of the fact that contempt application was initiated in the case. The deceased writ petitioner was alive then and learned Single Judge refused to interfere in the writ petition. . 2. Learned counsel appearing on behalf of the present appellant has submitted that during the pendency of the appeal the appellant died and that fact has been brought on record and he (deceased-appellant) has been substituted by his legal heir in the present appeal. 3. It is also further observed by the learned Single Judge that several opportunities for hearing have been given to the appellant-writ petitioner in the writ petition and for their mistake no fixation of pay scale was made to the appellant and that fact remains undisputed from the side of the respondents. 4. Learned counsel for the respondents has fairly submitted that earlier order has been passed in pursuance of the M.J.C. application by this Court. It has also been submitted that Annexure-9 to this appeal has been passed after affording opportunity to the deceased-writ petitioner. It has also been submitted that earlier order at Annexure-3 has been passed by the State Government after giving opportunity of hearing to the deceased-writ petitioner. Learned counsel for the University also brought to the notice of this Court to the effect that Annexure-3 has been passed after hearing the deceased-writ petitioner on 13.8.1998. 5. It is Drought to the notice of this Court that there is no material placed before the University for fixation of pay scale to the deceased-writ petitioner either by misrepresentation or fraud. In absence of which it cannot be said that there is a mistake and the deceased-writ petitioner was responsible for fixation of the pay. It is apparent on perusal of Annexure-1 that order has been passed without following the procedure of the University even though opportunity of hearing was given to the deceased-writ petitioner. In absence of which it cannot be said that there is a mistake and the deceased-writ petitioner was responsible for fixation of the pay. It is apparent on perusal of Annexure-1 that order has been passed without following the procedure of the University even though opportunity of hearing was given to the deceased-writ petitioner. It is not the case of the Government that impugned order was passed on the basis of misrepresentation caused on the part of the deceased writ petitioner to have the pay scale of Rs. 7,300/-. In absence of the allegation against the deceased-writ petitioner, we are of the opinion that both the authorities had committed error in calculating the pay scale and, as such, the order at Annexure-9 has been passed violating the principle of natural justice. Accordingly, this Court is of the opinion that the order at Annexure9 cannot be held to be sustainable. So far as the order at Annexure-3 is concerned, it is not the case of the deceased-writ petitioner to get the fixation of pay scale of Rs. 7,300/-, we are of the opinion that the order at Annexure-3 is also set aside. 6. In the result, the order of the learned Single Judge is set aside and the Letters Patent Appeal is allowed. 7. In view of setting aside of the impugned order, it is directed by this Court to the respondents to pay the appellant, the amount which has already been re- covered, within a period of six months from the date of receipt/production of a copy of this order.