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2012 DIGILAW 478 (JHR)

Bibhuti Sah Bhushan v. State of Jharkhand

2012-03-29

PRASHANT KUMAR

body2012
JUDGMENT Prashant Kumar, J- In this writ application petitioners prayed for quashing of Annnexures-11 and 13 whereby, pay of petitioners fixed in the scale of Rs. 680-965 (Graduate untrained scale) have been cancelled and fixed in the scale of Rs. 4500-7000/-. Petitioners further prayed for quashing of Annexure-14 whereby respondent no.7 directed all Drawing and Disbursing Authorities to recover excess payment made to the petitioners in the pay scale of Rs. 680-965/- 2. Fact of the case, in brief, is that in the year 1981 an advertisement issued for appointment of science teachers in I.Sc. and B.Sc. untrained scale. It is stated that in pursuance of said advertisement, petitioners applied and appeared in the interview. Thereafter, petitioners were appointed by the competent authority in the pay scale of Rs. 535-765/-. It is stated that petitioners and other similarly situated teachers made representation for giving them B.Sc. un-trained scale i.e. pay scale of Rs.680-965/-. It is stated that when aforesaid demand of the petitioners and others not fulfilled some of them filed writ petition in the Patna High Court vide C.W.J.C.No. 5144/1984. Said writ application allowed and respondents were directed to consider their case. It is stated that another writ application i.e. C.W.J.C. No. 905/1983 the Patna High Court issued direction to the respondents to decide the issue within a stipulated time. It is further stated that in pursuance of aforesaid direction of Hon’ble Patna High Court, Director Primary Education, Bihar Patna vide order dated 28.11.90( Annexure-5) concluded that B.Sc. untrained teachers are entitled to get pay in the scale of Rs. 680-965/- It is stated that petitioner no.1 alongwith others had filed writ application bearing C.W.J.C.No. 2788/1992, which was disposed of by the Patna High Court vide order dated 16/05/1997(Annexure-6) and directed that petitioners be given pay scale of Rs.680-965/- if similarly placed teachers working in the district of Godda and Dumka are getting aforesaid scale. It appears that in pursuance of aforesaid direction of Hon’ble Patna High Court respondents fixed pay of the petitioners in the scale of Rs. 680-965/- with effect from 1997. It is stated that thereafter, petitioners were drawing their salary in the pay scale of Rs. 680-965/- It is stated that respondent no.4 vide Annexure-10 directed respondent no.6 to prepare seniority list of teachers who were in the pay scale of Rs. 680-965/- but before doing so ascertain whether they were legally appointed or not. 680-965/- with effect from 1997. It is stated that thereafter, petitioners were drawing their salary in the pay scale of Rs. 680-965/- It is stated that respondent no.4 vide Annexure-10 directed respondent no.6 to prepare seniority list of teachers who were in the pay scale of Rs. 680-965/- but before doing so ascertain whether they were legally appointed or not. It is stated that respondent no.6 in garb of Annexure-10, arbitrarily cancelled pay fixation of petitioners in the scale of Rs.680-965/- and directed all the Drawing and Disbursing Authorities to pay them salary at the rate of Rs.4500/- till fixations of their pay by competent authority. It then appears that respondent no.6 finally vide Annexure-13 cancelled fixation of pay of petitioners in the scale of Rs. 680-965/- and re-fixed in the scale of Rs.4500-7000/-. It appears that by issuance of Annexure-14 all the Drawing and Disbursing Authority were directed to recover excess amount drawn by the petitioners in the pay scale of Rs. 680-965/-. 3. A counter affidavit filed by respondents wherein it is stated that petitioners were initially appointed against the post of Matric trained teacher, thus, they are entitled to get pay scale of Rs.535-765/-. It is stated that judgment of the Patna High Court is not applicable in the case of petitioners. It is further stated that since petitioners illegally drawing salary in higher pay scale, therefore, same has been rightly cancelled by the then District Superintendent of Education Sahebganj. 4. It is submitted by Sri R. Krishna, learned counsel for the petitioners that admittedly petitioners were drawing salary in the pay scale of Rs. 680-965/- . Thus, it is incumbent for the respondents to give notice and opportunity of hearing to the petitioners before canceling the same. It is stated in the writ application that before issuance of impugned order, respondents have not issued any notice to the petitioners and, therefore, impugned orders are violative of principles of natural Justice. It is also submitted that order of recovery as contained in Annexure-14 is arbitrary thus violative of Article 14 and 16 of the Constitution of India. 5. M/s Nehala Sharmin, learned counsel for the State submitted that since fixation of pay of petitioners in the pay scale of Rs.680-965/- is illegal, therefore, no notice is required to be issued to the petitioners. Thus, question of violation of principles of natural justice does not arise. 6. 5. M/s Nehala Sharmin, learned counsel for the State submitted that since fixation of pay of petitioners in the pay scale of Rs.680-965/- is illegal, therefore, no notice is required to be issued to the petitioners. Thus, question of violation of principles of natural justice does not arise. 6. Having heard the submissions, I have gone through the records of the case. 7. It is an admitted fact that by Annexure-7, 8 and 9 pay of petitioners fixed in the pay scale of Rs. 680-965/- with effect from 1997. It is also not in dispute that petitioners were drawing their salary in the pay scale of Rs. 680-965/- till issuance of Annexure-11 i.e. 09/5/2005. Under the said circumstance, if respondents are of the view that petitioners pay scale has wrongly been fixed then, in my view, it is incumbent upon the respondents to give notice and opportunity of hearing to the petitioners before canceling the same. It is well settled that if civil consequences follow from an administrative action then it is mandatory for the authority to give opportunity of hearing to the aggrieved persons. As in the instant case, pay scale of petitioners reduced, certainly they faced civil consequences. 8. Petitioners specifically stated at paragraph no.26 of the writ application:- “That it is stated that the respondents have not issued any notice to the petitioners before passing the impugned orders by which the pay scale earlier given to the petitioners in the pay scale of Rs.680-965/- has been taken away and, therefore, there is complete violation of principles of natural justice. 9. In the counter affidavit at paragraph 30 reply of paragraph 26 of writ application given, which runs as follow :- “That the reply of paragraph-26 has been discussed in earlier paragraph-21 of this counter affidavit.” 10. In view of averments made at paragraph no.30 of the counter affidavit, it is relevant to look into paragraph 21 of the counter affidavit which runs as follows: “That the statements made in paragraph-15 requires no comment.” 11. Thus, from joint reading of paragraph no.30 and 21 of the counter affidavit, it is clear that averments made at paragraph no.26 of the writ application has not been denied, as respondents specifically stated that statements require no comment. Thus, from joint reading of paragraph no.30 and 21 of the counter affidavit, it is clear that averments made at paragraph no.26 of the writ application has not been denied, as respondents specifically stated that statements require no comment. Thus, respondents admitted that before issuance of impugned order i.e. Annexures 11, 13 and 14, no notice and/or opportunity of hearing given to the petitioners. Accordingly, I find that in the instant case, respondents without following the principles of natural justice had cancelled pay of petitioners fixed in the scale of Rs.680-965/- and gave direction for recovery of amount drawn by petitioner, which in my view is illegal and violative of Articles 14 and 16 of the Constitution of India. 12. In view of discussions made above, this application is allowed and impugned orders as contained in Annexures- 11, 13 and 14 are hereby quashed. Parties shall bear their own cost. Application allowed.