JUDGMENT AND ORDER : Heard Mr. Kh. Tarunkumar, learned counsel appearing for the petitioner and Mr. S. Rupachandra, learned ASG, appearing for the respondents. 2. This is a petition filed under Article 226 of the Constitution of India, praying for issuance of a writ in the nature of Certiorari or any other appropriate writ, or order or direction of the like nature as this Court may deem fit and proper quashing or setting aside the pay structure of the petitioner issued by the Office of 30 AR under Battalion Routine Order Part II, at Annexure-A/8, couple with a prayer for issuance of writ of Mandamus, directing the respondents to allow the petitioner to enjoy his monthly pay and allowances as was fixed on 22.09.2012, (at Annexure-A/7 of the writ petition). 3. The facts of the case briefly stated are as follows: That, the petitioner was appointed/enrolled in the Assam Rifles as recruit (General Duty) on 25.06.1981 and was attested as Riflemen (General Duty) on 28.07.1982. Thereafter, he was gradually promoted to Lance Naik and then to Naik. While he was in the rank of Naik, the rank of Naik was merged with the rank of Havildar (General Duty) with effect from 1997, therefore, he was designated as Havildar No. GD G/3000449L on 10.10.1997. After coming to know through a communication from the office of Assam Rifles dated 19.08.2005 that he cannot be considered for promotion to the post of Naib Subedar because of his placement in the “low medical category”, The petitioner filed a writ petition in the Gauhati High Court, Kohima Bench, praying for setting aside the said communication and at the same time praying for a direction to the respondents to consider his case for promotion to the said rank. The writ petition was registered as W.P. (C) No. 182 (K) of 2006.The Hon’ble High Court disposed the writ petition with a judgment passed on 19.08.2005 allowing the prayer of the petitioner and thereby directed that the petitioner’s case for promotion to the post of Naib Subedar be considered with effect from the date it was due to him within a period of 4 (four) months from the date of passing of the order. The respondents went on appeal in the same Bench of the Gauhati High Court, and the appeal was registered as W.A. No. 11 (K) of 2010, and it was disposed on 02.08.2011 with an order which upheld the judgment passed in W.P.(C) No. 182(K) of 2006. But not satisfied with the judgment, the respondents file an SLP against the judgment in the Supreme Court of India, but the same was dismissed by the Hon’ble Supreme Court on 09.12.2011. Only thereafter, the petitioner was promoted to the rank of Naib Subedar (G.D.) vide their order I. 19012/30AR/0002/2012/Adm1(A)/117 dated 21.02.2012. Following the issuance of the promotion order, the pay of the petitioner was fixed at Rs. 19,140 with effect from 01.07.2012 in the pay band -2 Rs. 9,300 - 34,800 + Grade Pay, Rs. 4,600 p.m. Accordingly, the petitioner started enjoying higher pay and continued to do so till when another order was issued all of a sudden on 31.10.2013 re-fixing his pay at the scale of 15,150 thereby cancelling the earlier pay scale issued by the authority dated 22.09.2012 without giving him (the petitioner) a chance of being heard. Being aggrieved by this order, the petitioner has come to this Court with the prayer as stated above. The first pay scale dated 22.09.2012 and the second pay scale dated 31.10.2013 issued by the competent authority of the Assam Rifles are given here below respectively: Annexure A/7 Restricted Unit: 30 Assam Rifles Present BRO Part II Ser No: 61 Location: C/O 99 APO Dated: 2 Sep 2012 Sheet No. 03 of 11 G/3001213 Rfn/GD Kewal Singh (viii) Total pay as on 01 Jul 2012 Rs 12770/- Total pay fixed at Rs. 12770/- wef 01 Jul 2012 in the pay band- 1 Rs 5200-20200/- plus grade pay Rs. 2800/-pm DNI 01 Jul 2013. Auth: HQ DGAR order No. I. 19012/MACPS/30 AR/12/Adm-I (A)/289 dt. 23 Aug. 2012 3 JC-3000449 Nb/Sub Ramesh Chand (a) Ref DO II Ser No. 80/07/10 dt 13 Jul 10 and 06/40/12 dt 17 Jan 2012. Please treated as cancelled and re-pub as under: (b) Gtd 3rd financial upgradation under MACPS in the next higher grade pay as given in Sec-I, Part-A of the first schedule of the CCS (Revised Pay) Rules 2008 wef 25 Jun 2011 in the pay band-2 Rs. 9300-34800/- plus grade pay Rs. 4600/- pm. Please treated as cancelled and re-pub as under: (b) Gtd 3rd financial upgradation under MACPS in the next higher grade pay as given in Sec-I, Part-A of the first schedule of the CCS (Revised Pay) Rules 2008 wef 25 Jun 2011 in the pay band-2 Rs. 9300-34800/- plus grade pay Rs. 4600/- pm. (c) Option exercised in view of GID (17) FR-22 for fixation of pay on accruing on next increment in the existing scale of pay Rs. 9300-34800/plus grade pay Rs. 4200/-pm. (i) Pay as on 25 Jun 2011 in the existing pay band-2 (excluding grade pay) Rs. 12930/- (ii) Gtd annual increment on Rs 17130/- (12930+4200) on 01 Jul 2011 Rs. 520/- (iii) Gtd 3% increment on Rs. 17650/- (17130+520) on 01 Jul 2011 Due to MACP Rs. 530/- (iv) Gtd grade pay on the upgradation scale on 25 Jan 2011 Rs. 4600/- (v) Total pay as on 01 Jul 2011 Rs. 18580/- (vi) Gtd annual increment 3% on Rs. 18580/- on 01 Jul 2012 Rs. 560/- (vii) Total pay as on 01 jul 2012 Rs. 19140/- Total pay fixed at Rs. 19140/- wef 01 Jul 2012 in the pay band-2 Rs. 9300-34800/- plus grade pay Rs. 4600/- pm DNI 01 Jul 2013 Auth: HQ DGAR letter No. I 1902/MACPS/30/2011/1/Adm-I(A)/3065 dt 13 Dec 2011. 4 F/3001522 Rfn/Cook Ramhet Gurjar (a) Ref DO II ser No 75/11/10 dt 08 Jul 2010 and 42/10/10 dt 17 May 2011. Please treated as cancelled and re-published as under: (b) Gtd 2nd financial upgradation under MACPS in the next higher grade pay as given in Sec-I, Part_A of the first schedule of the CCS (Revised Pay) Rules 2008 wef 01 Sep 2008 in the pay band-I Rs 5200-20200/- plus grade pay Rs. Please treated as cancelled and re-published as under: (b) Gtd 2nd financial upgradation under MACPS in the next higher grade pay as given in Sec-I, Part_A of the first schedule of the CCS (Revised Pay) Rules 2008 wef 01 Sep 2008 in the pay band-I Rs 5200-20200/- plus grade pay Rs. 1900/- pm Annexure A/8 Restricted Battalion Routine Order Part-II 30 AR BRO No: 90 BRO Date: 28-Oct-2013 Casualty Group-II PTO Type: JCO/OR Previous BRO No. 89 Previous BRO Date: 28-Oct-2011 Create Date - 31-Oct-2013 Verify Date - : 31-Oct-2013 Authorise Date- : 31-Oct-2013 User- : BAJRANG LAL KUMAWAT Rfn/GD User - : THEINGAI LEIKHA Sub/Clk User- : CHANDAN KHARYAL Maj MACP3 with option JC - 3000449L Nb Sub/GD Ramesh Chand Granted MACP3 wef 25-Jun-2011 in pay scale 9300-34800/-pm with grade pay of 4200/-pm and pay fixed as under: (a) Pay drawn as on 25-Jun-2011, including Grade pay of 2800 12,530.00 (b) Additional increment @ 3% of 12530/- from 01-Jul-2011 for option 380.00 (c) Total pay 12530 with Increment and including Grade pay of 2800 12,190.00 (d) Granted one notional increment @ 3% of 390.00 Pay mixed with higher grade pay of 4200/- 14,700.00 (i) DNI on 01-Jul-2012 with increment of 450 15,150.00 (ii) DNI on 01-Jul-2013 with increment of 460 15,610.00 (iii) DNI on 01-Jul-2014 with increment of 470 15,080.00 (iv) DNI on 01-Jul-2015 with increment of 490 16,570.00 Ref DO II ser No. 61/03/12 dt 22 Sep 2012 treated as cancelled. Vide 30 AR Part II Order No: 90/07/2013 dt 28-Oct-2013 & Ref PTO No: dt Vide Authority Letter No. HQ DGAR Order No 31017 Rec Br /Doc-VIII/2013 dt 18-Sep-2013 1. Drafted By 2. Created By 3. Verified by 4. Authorised by Adjutant For Comdt Restricted 4. The case of the petitioner is mainly pressed by the learned counsel representing him on one point only that is violation of natural justice. It is submitted that when the petitioner has already been allowed to enjoy a pay scale of Rs. 19140/- for over a year, the authorities i.e. respondents should not have reduced his pay scale to Rs. 15150/- without giving him a chance of being heard. When a right has accrued to the petitioner the principle of natural justice demands that he should have been given a chance of being heard before his pay was abruptly reduced. 19140/- for over a year, the authorities i.e. respondents should not have reduced his pay scale to Rs. 15150/- without giving him a chance of being heard. When a right has accrued to the petitioner the principle of natural justice demands that he should have been given a chance of being heard before his pay was abruptly reduced. The learned counsel cited similar cases wherein orders reducing pay of employees issued without giving prior notice to petitioners have been interfered and quashed by Courts. Relevant portion of some of the judgments cited by the learned counsel are given here below : 1. 2003(2) GLT 83 : Jibeswar Das & Ors Vs. State of Assam “6. Mr. Sarma, learned sr. Counsel has submitted that this cancellation of refixation of pay scale of the petitioners without giving any opportunity itself is contrary to the settled law. In support of his submission, he has cited three decisions of the Apex Court, namely (i) Divisional Superintendent, Eastern Railway, Dimapur and others Vs. Shri L.N. Keshri and others reported in (1975) 3 SCC 1 , (ii) H.L. Trehan and others Vs. Union of India and others reported in (1989) 1 SCC 764 and (iii) Bhagwan Shukla Vs. Union of India and ors. reported in AIR 1994 SC 2480 . The ratio laid down in those cases is that there is a flagrant violation of principles of natural justice in reduction/alteration of the basic pay of the employees without giving any opportunity of being heard to the petitioner. This is what has exactly happened in this case. On a bare perusal of the impugned order dated 16.9.98 it clearly goes to show that same has been passed without giving any opportunity to the petitioners or without assigning any reason whatsoever. 7. Having regard to the above cited cases and after hearing learned counsel for the parties and on perusal of the materials on record, this Court is of the considered view that the impugned order deserves to be interfered with on the count of violation of principle of natural justice alone. Besides, the fixation of revised pay scale of the petitioners at Rs. 1125/- as stated in para 11 of the Govt.’s affidavit is appeared to the contrary of Rule 11(2) of the revision of pay scale, 1990 providing that the initial pay cannot be less than the total emoluments which is admittedly Rs. Besides, the fixation of revised pay scale of the petitioners at Rs. 1125/- as stated in para 11 of the Govt.’s affidavit is appeared to the contrary of Rule 11(2) of the revision of pay scale, 1990 providing that the initial pay cannot be less than the total emoluments which is admittedly Rs. 1188/- as on 9.8.90. Accordingly, the impugned order dated 16.9.98 shall stand quashed. In the result, this writ application is allowed. No costs.” 2. 2001 (2) GLT 449 : Rajesh Basor Vs. Tura Town High School & Ors. “Para No. 5- (i) The writ petitioner was initially appointed as Cleaner/Sweeper under the related appointment order dated 4.8.1988 as seen in the document marked as Annexure - A to the writ petition which was done on the basis of the sanction accorded by the Inspectors of Schools and, accordingly, the petitioner has been enjoying the time scale of pay of Rs. 820-1175/- for many years till the month of April, 1995 and at that relevant time, the petitioner was drawing his full salary of Rs. 2079.70 but, by virtue of the impugned orders mentioned above, the time scale of pay afforded to the petitioner for many years had been reduced to a consolidated pay of Rs. 1,100/- and, that too without affording any reasonable opportunity of being heard before such reduction of pay was made by the appropriate authority which, in my considered view, it is violative of the principles of natural justice. (ii) It may be true that the petitioner was appointed in the said post Cleaneer/Sweeper in the said school since 5.8.1988 on the basis of the sanction accorded by the Inspector of Schools and that too might have been done without the prior approval of the Government and for the fault of the authority concerned, a question arises in the instant case that whether the petitioner should suffer for the fault of the competent authority like, the present respondents concerned. In my considered view, the answer is “No”. At this stage, the principles of de-facto should be attracted and it shall play a great role in the matter. Be that as it may, if the time scale of pay so far afforded to the petitioner to the total tune of Rs. 2079.70 is to be reduced to a consolidated pay of Rs. At this stage, the principles of de-facto should be attracted and it shall play a great role in the matter. Be that as it may, if the time scale of pay so far afforded to the petitioner to the total tune of Rs. 2079.70 is to be reduced to a consolidated pay of Rs. 1,100/- it would be just and fair on the part of the authority concerned to afford an opportunity to the petitioner by issuing a prior notice to show cause as to why the regular time scale of pay afforded to the petitioner should not be reduced and, consolidated pay of Rs. 1,100/- with effect from 1.3.1995 should not be made or not; but, it was not done so by the appropriate authority before passing the impugned orders, in other words, the authority concerned did not follow the procedural standard prescribed by law before passing the impugned orders thus, causing arbitrariness and illegal impugned orders. (iii) It is well settled that a right which has been given once to a person or persons and if the same is to be withdrawn or taken away by the authority concerned under certain reason and circumstances, no doubt, it can be withdrawn after affording reasonable opportunity of being heard or say to the person or persons concerned by giving reasons. This is what, we call the principles of natural justice. In the instant case, it was not done so by the appropriate authority while reducing the regular time scale of pay, in other words, the total salary of Rs. 2079.70 afforded to the petitioner to the lower time scale of pay i.e. the consolidated pay to the tune of Rs. 1,100/- with effect from 1.3.1995 which, according to me, it is not fair, rather, it is unjust and the same is not tenable in the eye of law. It is a good common sense as I brought common sense in interpreting this matter in the instant case. (iv) Realising the irregularities committed by the respondents/authority concerned, the authority concerned took action for creating one post of Cleaner for regularisation of the service of the writ petitioner as seen in the document marked as “X” for identification namely, the office order dated 4.1.2001, bearing No. DG.I/CC/2/2000/63 issued by the Dy. Director of Higher & Technical Education, Meghalaya Shillong. (iv) Realising the irregularities committed by the respondents/authority concerned, the authority concerned took action for creating one post of Cleaner for regularisation of the service of the writ petitioner as seen in the document marked as “X” for identification namely, the office order dated 4.1.2001, bearing No. DG.I/CC/2/2000/63 issued by the Dy. Director of Higher & Technical Education, Meghalaya Shillong. (v) As discussed above, once a right has been conferred and given upon a person or persons, it is to be withdrawn, at least those persons should be given a chance or opportunity of being heard or say in the matter and, if such opportunity is not given before withdrawing such rights conferred upon him or her then, the action of the respondents amounts to violation of the principles of natural justice. This is the law of the land. In the case in hand, according to me, reduction of scale of pay of the writ petitioner from higher pay to consolidated pay of Rs. 1,100/- per month amounts to reduction in rank and status of the writ petitioner. (vi) In the instant case, the action of the State respondents while passing the impugned orders amounts to civil consequence undoubtedly covered infraction of legal right of the writ petitioner. (vii) It is well settled that the Public Body invested with a statutory powers, such as those conferred upon them must take care not to exceed or abuse its powers and it must keep within the limits of the authority committed to it and, it must act in good faith and it must act reasonably and their discretion in the matter should be exercised reasonably, fairly and justly but, in the instant case, these legal mandates were not followed by the authority concerned while causing the reduction of the time scale of pay of the petitioner to a consolidated pay of Rs. 1,100/-. The petitioner is a Cleaner/Sweeper rather, a harizon (Scheduled Caste) belonging to a poor and weaker Section of the society who has been rendering his services since the year 1988 with his full salary entitled to him to the tune of Rs. 2079.70 till the month of April 1995, whose such rights had been deprived of without any justification thus, entitling him to a consolidated pay of Rs. 1,100/- after rendering a continuous service of about 7 (seven) years. 2079.70 till the month of April 1995, whose such rights had been deprived of without any justification thus, entitling him to a consolidated pay of Rs. 1,100/- after rendering a continuous service of about 7 (seven) years. In my considered view, it is too much for the State respondents. 5. Mr. S. Rupachandra, learned counsel for the respondents, submitted that the impugned order was an administrative order, therefore, there was no need of giving prior notice to the petitioner. He also submitted that there is no rule or office memorandum issued by the respondents which states that prior notice should be given to people whose pay are under consideration for reduction or refixation. 6. I have gone through the affidavit-in-opposition filed by the respondents. It has been more or less summed up in the submission of the learned counsel representing them. However, one thing that they have pointed out is that the earlier pay i.e. the pay scale of Rs. 19140/- was fixed as such as it was calculated w.e.f. 01.12.2014, whereas it should have been calculated w.e.f. the date of his joining to the rank of Naib Subedar i.e. on 12.03.2012. Therefore, after the mistake was found out, the same was rectified and the new pay fixation which is impugned in this case was issued. 7. From the facts and circumstances admitted by both the parties, it is clear that before the impugned order was issued, the petitioner was not given an opportunity of being heard. As it is seen in the cases cited by the learned counsel for the petitioner, it is a settled principle of law that when a right has accrued to a person, if the authorities want to take back or change the nature of such right which would cause some disadvantage or loss to such person a chance of being heard should be given to the person whose accrued right is to be affected. Not doing so would amount to violation of natural justice which will render such order ineffective and liable to be quashed. Not doing so would amount to violation of natural justice which will render such order ineffective and liable to be quashed. The respondents’ submission that it was a mere correction of mistake in the calculation of the pay of the petitioner, therefore, there is no need of giving him a prior notice or chance of being heard does not appear to be in sync with the established principle of law applicable in such circumstances which has been consistently followed by the Courts in this Country. Further, the argument that no rule or office memorandum exist requiring issuance or giving prior notice in such cases in my view is not a valid and reasonable argument. Because, the principle of natural justice in this Country has gone through a lot of changes and the principle has been even applied in the process of administrative decision makings wherever or whenever a person’s accrued right is going to be or likely to be affected. In this point the judgment cited by the learned counsel for the petitioner is quite relevant. Relevant portion of the same is given here below : (2004) 2 SCC 447 “10. Even if a statute is silent and there are no positive words in the Act or the rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant’s defence or stand. Even in the absence of a provision in procedural laws, power inheres in every tribunal/court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadeshi Cotton Mills v. Union of India.) Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain.” From the above stated judgment, it is quite clear that to ensure fairness, not only in judicial and quasi-judicial proceedings but even in administrative decision making processes, principle of natural justice can be applied or read into any statute or law (law in any form including rules, office memorandum, etc.) even when it is not mentioned or included in it unless it is specifically excluded. This being the law which has been consistently followed by the Courts in the country, in my view, the submission of the learned counsel for the respondents that there is no rule or office memorandum which requires that chance of being heard should be given to the person whose pay is to be re-fixed, therefore, the petitioner was not given prior notice before his pay was re-fixed does not seem to hold any water. 8. Further, it may be relevant to point out here what was stated in the operative portion of the order dated 04.12.2009 passed in W.P.(C) No. 182(K) 2006 by the Hon’ble Gauhati High Court in which the respondents were directed to promote the petitioner to the post of Naib Subedar and eventually he was promoted. The same is given here below : “12. In view of the above discussion, I am of the considered opinion that the petitioner’s injury was the result of an accident suffered by him “on active Govt. The same is given here below : “12. In view of the above discussion, I am of the considered opinion that the petitioner’s injury was the result of an accident suffered by him “on active Govt. duty” at the relevant time, he was undergoing section commander course training in the Infantry School, Mhow. Therefore, he was entitled to be considered for promotion despite his “low medical category” of status S1H1A2P1E1 (SHAPE standardization). Accordingly the impugned communication dated 19.08.2005 (annexure 6) to the writ petition cannot be sustained in law and the same is hereby quashed. The respondents are accordingly directed to consider the petitioner for promotion to the post of Naib Subedar with effect from the date when it was due to him. Such consideration shall be made expeditiously and within the outer limit of 4 (four) months from today. 13. The Writ Petition stands allowed accordingly.” It would be seen From the above quoted operative portion of the Hon’ble High Court’s order that the respondents were directed to consider the promotion of the petitioner to Naib Subedar w.e.f. the date when promotion was due to him. Further, it may also be noted that the office of the Directorate General Assam Rifles issued promotion order of the petitioner as follows : “Annexure-/VI MAHANIDESHALAYA ASSAM RIFLES DIRECTORATE GENERAL ASAM RIFLES : SHILLONG-793011 ORDER I. 19012/30 AR/0002/2012/Adm-I(A)/177 Dated: Shillong, the 21 Feb 2012 1. Promotion in respect of No. 3000449 Hav (GD) Ramesh Chand, UR candidate of 30 Assam Rifles to the rank of Nb Sub (GD) is hereby ordered with antedate seniority wef01 Dec 2004 against the over all deficiency existing in the Force, subject to fulfilment of discipline criteria as mentioned in Appx ‘A’ to ROI 4/2002. 2. In case, the NCO is involved in a disciplinary case and do not fulfil following discipline criteria, will not be promoted to the rank of Nb Sub (GD) and an intimation to this effect will be given to this Dte for cancellation of promotion order:- (a) An individual should not have more than a total three red ink entries in the entire service including nor more than one red ink entry during the last five years. (b) No red ink entry has been incurred during the last one year. 3. Personal occurrence relating to promotion be notified in part II order giving ante date seniority wef 01 Dec 2004. 4. (b) No red ink entry has been incurred during the last one year. 3. Personal occurrence relating to promotion be notified in part II order giving ante date seniority wef 01 Dec 2004. 4. Before promoting the above JCO unit/est will ensure that the JCO meets the discipline QR as per para 1 to 7 of Appendix ‘A’ to ROI 4/2002. In case the above JCO is found ineligible, Records Branch this Dte shall be apprised by signal for further action. Auth :- Note 1 to 3 of Minute sheet No. I. 19012/30/2012/Adm-I(A) dated 20 Feb 2012, and 30 AR DPC ser No. 1 dated 04 Feb 2012 (Hav to Nb Sub) (S Chellappa) Colonel Col (Records) For Brig (Pers)” From the above stated order of the Hon’ble High Court it would be seen that the petitioner’s promotion was to have been considered from the date, promotion was due to him which according to the parties would have been from 01.12.2004. It would also be seen from the promotion order given above that the petitioner was given antedate seniority w.e.f. 01.12.2004. In view of the Hon’ble High Court’s order and the promotion order given above, in my considered view, there is nothing wrong in having calculated or fixed the pay of the petitioner w.e.f. 01.12.2004 because that is the time when promotion was due to him. 9. In view of the facts and circumstances, the settled principle of law and reasons discussed, I am of the view that the respondents have definitely violated the principle of natural justice in the process of or while issuing the impugned order at Annexure-A/8 of the writ petition, as such, the same cannot be allowed to stand, hence, deserves to be quashed. Accordingly, the impugned order is quashed. In consequence the petitioner shall be allowed to continue to enjoy the old pay scale of Rs. 19140/- as per the pay fixation given at Annexure, A/7 of the writ petition. With this, the writ petition is disposed.