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Jharkhand High Court · body

2018 DIGILAW 176 (JHR)

Kashi Nath Ganguly v. State of Jharkhand

2018-01-19

PRAMATH PATNAIK

body2018
JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has made prayer for quashing the office order dated 16.10.2007 (Annexure-9) issued by respondent no.2 pertaining to refixation of pay in the lower scale and for recovery of the excess amount. The petitioner has further prayed for direction to the respondents to fix pension finally after refixing of pay scale of Rs.6500-200-10500/-w.e.f. 15.11.2000 alongwith payment of arrears and payment of G.P.F. amount with interest. 2. The brief facts as has been averred in the writ application is that initially the petitioner joined in the year 1984 as Supervisor (Mech) at Bacon Factory, Ranchi. After completion of 10 years of service, the petitioner has been granted 1st Time Bound Promotion in the year 1994 in the scale of Rs.2600-75-2900/-. In the year 2005 vide office order issued by respondent no.2 the pay scale of the petitioner was fixed and confirmed as Rs.5000-150-8000/-. Subsequently office order dated 28.05.2005 issued by respondent no.2 pertaining to fixation of pay scale as per coloum-8 of the chart of 3rd and 4th grade employee on their completion of 12 and 24 years of service. In pursuance to the said office order, a resolution dated 13.10.2005 issued by the Finance Department wherein the First and Second Finance Pay Scale has been fixed as Rs.6500-10,500/-and Rs.10,000/-15,200/-as per Annexure-4 to the writ petition. In pursuance to the said resolution the petitioner submitted representation on 28.11.2005 before the respondent no.2 for grant of the aforesaid scale as evident from Annexure-5 to the writ application and the said representation was followed with another representation dated 29.05.2006. On the basis of resolution dated 13.10.2005 and in consideration of the representation of the petitioner, the scale of the petitioner has been refixed as Rs.6500-10,500/-w.e.f. 5.11.2000 in place of Rs.5500-175-9000/-and vide order dated 19.10.2006 all the arrears were paid to the petitioner. Just before a couple of month prior to retirement the respondent no.2 issued order dated 16.10.2007 vide Annexure-9 to the writ application reducing the scale of pay of the petitioner and directing for recovery of the excess amount paid to the petitioner since 15.11.2000 vide Annexure-9 to the writ application which is impugned in this writ petition. Immediately after the impugned order, the petitioner submitted representations vide Annexures-10, 11, 12 and 13. Immediately after the impugned order, the petitioner submitted representations vide Annexures-10, 11, 12 and 13. Being aggrieved by and dissatisfied with the impugned order vide Annexure-9 to the writ petition and due to inaction of the respondents, the petitioner left with no other alternative, efficacious and speedy remedy has knocked the doors of this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Learned senior counsel on behalf of the petitioner has vehemently submitted that the impugned order vide Annexure-9 in reducing the pay scale of the petitioner without issuance of show cause notice is nonest in the eye of law. Learned senior counsel further submits that the action of the respondents in passing the impugned order has resulted in civil consequences which is not sustainable in the eye of law. Learned senior counsel further submits that the petitioner has been subjected to gross prejudice which is not only illegal but also arbitrary and amounts to colourable exercise of power in breach of Article 14, 16 and 21 of the Constitution of India. During course of hearing learned counsel for the petitioner has referred to decision as reported in W.P. (S) No.6878 of 2005 which has been confirmed in L.P.A No.364 of 2013 vide order dated 5th January, 2015. 4. Repudiating the averment made in the writ application, a counter-affidavit on behalf of the respondent nos.1 and 2 has been filed. In the counter-affidavit, it has been interalia submitted that vide resolution no.5207 dated 14.08.2002 of Department of Finance, Government of Jharkhand after completion of 12/24 years of service to provide benefit of promotion under Assured Career Promotion (ACP) scheme in pursuance of the said resolution vide office order dated 10.05.2005 the petitioner was given the benefit of 1st ACP with effect from 09.08.1999 in the scale of Rs.5500-175-9000. It has further been submitted that the petitioner put an application on 29.05.2006 enclosing resolution dated 13.10.2005 of Finance Department, requesting pay be fixed in the scale of Rs.6500-10,500/-in place of Rs.5500-9000. On the basis of resolution, he was granted first ACP in the scale of Rs.6500-10500 after rectification of office order dated 10.05.2005 as evident from Annexure-B to the counter-affidavit. After granting ACP, petitioner's service book dated 24.11.2006 was presented in the office of Commissioner, Sough Chhotanagpur Division, Ranchi for confirmation. On the basis of resolution, he was granted first ACP in the scale of Rs.6500-10500 after rectification of office order dated 10.05.2005 as evident from Annexure-B to the counter-affidavit. After granting ACP, petitioner's service book dated 24.11.2006 was presented in the office of Commissioner, Sough Chhotanagpur Division, Ranchi for confirmation. It has further been narrated that departmental letter dated 03.10.2007 that the pay scale of Supervisor (Machinist) is Rs.5000-8000 as a single post. Hence, in pursuance of the resolution dated 14.08.2002 of Department of Finance, the confirmation of the first ACP was made in the pay scale of Rs.5500-9000 and ACP given to the petitioner was made in the pay scale of Rs.6500-10500 was cancelled with direction to adjust the extra payment made to the petitioner by virtue of previous order. Accordingly, an order was passed to recover the extra amount paid to the petitioner in the light of Department letter dated 03.10.2007 and vide office order dated 16.10.2007 as per Annexure-F to the counter-affidavit. 5. Mr. Navin Kr. Singh, learned J.C. to G.A.III for the respondent-State apart from reiterating the submissions made in the counter-affidavit has submitted that the impugned order has been passed in view of the conditions as mentioned in the resolution dated 14.08.2002 as referred to in Annexure-B to the counter-affidavit. Therefore, there is absolutely no infirmity or illegality committed by the respondents for refixation of the pay-scale and for recovery of the excess amount. 6. Mr. S. Shrivastava, learned counsel for the respondent no.4 has also supported the stand of the respondents. 7. After hearing learned counsel for the respective parties at length and on perusal of the documents on records, the petitioner has been able to make out a case for interference due to the following facts and reasons:- (I) Admittedly by the impugned order the pay scale of the petitioner has been altered/reduced by the respondents without any notice or show cause which is malafide and discriminatory and amounts to colourable exercise of power. (II) That the averment made in paragraph nos.12, 13 and 15 of the writ applications have not been controverted in the counter-affidavit filed by the respondents. (II) That the averment made in paragraph nos.12, 13 and 15 of the writ applications have not been controverted in the counter-affidavit filed by the respondents. Therefore, the impugned order dated 16.10.2007 (Annexure-9) issued by respondent no.2 is not sustainable, and any direction by the respondents for recovery of the excess payment from the salary could not have been made without giving proper opportunity to the petitioner to reply to the said notice admittedly same has not been done in the instant case. Therefore, the impugned action by the respondents in directing for refixing pay-scale for recovery of excess payment would not be justified on anvil of Article 14, 21 and 300 (A) of the Constitution of India. 8. Accordingly, the impugned order dated 16.10.2007 vide Annexure-9 is hereby quashed and set aside and the respondents are directed to fix the pension after refixation of his pay in the pay-scale of Rs. 6500-200-10500/-and the entire exercise be completed within a period of 12 weeks from the date of communication of this order. Resultantly, the writ petition stands allowed. Petition allowed.