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2018 DIGILAW 337 (UTT)

Kusal Mani v. State of Uttarakhand

2018-06-20

SHARAD KUMAR SHARMA

body2018
JUDGMENT : 1. These are the bunch of writ petitions which could be for the purposes of convenience be classified into three wider categories of petitions relating to: (A) Education Department (B) Ayurvedic and Unani Services and (C) Forest Department. 2. These bunch of writ petitions are listed today on the Delay Condonation Application (CLMA No. 8195 of 2018) filed by the respondent nos. 3 and 5 in support of their counter affidavits. 3. After going through averments made in the Delay Condonation Application, this Court is of the view, that the delay which has chanced in filing the counter affidavits has been satisfactorily explained, hence the application for condonation of delay is allowed and the delay caused in filing counter affidavit would stand condoned. 4. All the parties to the writ petitions appearing through their respective counsel agree that though these bunches of writ petitions may be marginally involving a different set of facts, but basically the legal issues involved in all the cases are identical. Hence, for the purposes of brevity, the same are being decided by this common judgment. This judgment would cover the following writ petitions: A. Education Department: This bunch will have to be further sub classified based on the relief sought as (1) those writ petitions in which the order dated 09.02.2018 is under challenge – WPSS Nos. 559 of 2018, 558 of 2018, 1039 of 2018, 1081 of 2018, 1189 of 2018, 1292 of 2018, 1368 of 2018, 1370 of 2018, 1361 of 2018, 1369 of 2018, 1365 of 2018, 1367 of 2018, 1384 of 2018, 1381 of 2018, 1380 of 2018, 1390 of 2018 (II) In these writ petitions the orders dated 09.02.2018 as well as the consequential order 09.02.2018 has been put to challenge – WPSS Nos. 916 of 2018 and Nos. 562 of 2018 B. Ayurvedic and Unani Services: This bunch will have to be further sub classified based on the relief sought as (1) Those writ petitions in which the order dated 13.11.2017 has been put to challenge – WPSS Nos. 808 of 2018, 810 of 2018, 806 of 2018, 901 of 2018, 1014 of 2018, 997 of 2018, 1062 of 2018, 1085 of 2018, 1059 of 2018, 1061 of 2018, (II) Those writ petitions in which the order dated 13.11.2017 as well as order dated 21.04.2018 has been challenged –WPSS Nos. 808 of 2018, 810 of 2018, 806 of 2018, 901 of 2018, 1014 of 2018, 997 of 2018, 1062 of 2018, 1085 of 2018, 1059 of 2018, 1061 of 2018, (II) Those writ petitions in which the order dated 13.11.2017 as well as order dated 21.04.2018 has been challenged –WPSS Nos. 866 of 2018, 871 of 2018, 870 of 2018, 867 of 2018, 1079 of 2018, 1093 of 2018, 1080 of 2018 (III) Those writ petition in which the order 13.11.2017 and the order dated 07.04.2018 is under challenge – WPSS No. 809 of 2018 and 794 of 2018 C. Forest Department: WPSS No. 2088 of 2017 – In this writ petition, the following orders are under challenge - Order dated 04.07.2017, 7/10.02.2017, Order Nos. 84, 85 and 86 dated 26.07.2018 5. Dealing with the facts of each bunch, Education Department as raised in the leading writ petition being Writ Petition (S/S) No. 562 of 2018 of Education Bunch, is being taken as an exemplar fact for the present bunch. 6. The petitioners’ case before this Court is that they had filed the writ petition primarily claiming relief’s of the following nature: “(i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the order dated 9-2-2018 (annexure No. 15 to the writ petition) and the resolution dated 9-1-2018 (annexure no. 14 to the writ petition), so far as it relates to the petitioner. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to reduce the salary of the petitioner during the pendency of the writ petition and further restraining the respondents from making any recovery from the salary of the petitioner. (iii) Issue any other relief, which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iv) Cost of petition may be awarded in favour of petitioner.” 7. The facts and the foundation on the basis of which the impugned action of recovery as made by the impugned order dated 9th February 2018, is taken against the petitioners is on the order passed by Respondent No. 3 (Director of Education (Basic), Uttarakhand, Nanoorkhera, Dehradun) in the cases of first bunch of Education Department, which is based on resolution dated 9th January, 2018, dealt with the issue of grant of selection grade/promotional pay-scale on grade pay of Rs. 4600/- and consequential fitment as per tabulation to Rs. 17140/-. 8. By the impugned orders dated 13.11.2017 passed by Respondent no. 1 and order dated 21.04.2018 in compliance of 13.11.2017 by Respondent No. 3. (21.04.2018 WPSS Nos. 866 of 2018, 871 of 2018, 870 of 2018 and 867 of 2018) and 07.04.2018 passed by the respondent No. 3 in bunch relating to petitioners of writ petitions of Ayurvedic and Unani Services. 9. By the impugned orders dated 04.07.2017 and 07/10.02.2017 passed by the respondent nos. 3 and 4 of Forest Department’s, writ petition has been put to challenge. 10. The case of the petitioners, is that the amount sought to be recovered by the impugned order dated 9th February, 2018 (and by such different impugned orders in other bunch of writ petitions) runs contrary to the principles of law laid down by His Lordships of Hon’ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 , which has laid down the following broader principles which are required to be strictly adhered with and the factors which are to be considered and followed before resorting to the procedure permissible under law for recovery of an amount already paid to an employee bonafidely by the employer, without there being any influence, misrepresentation or fraud exercised by the employee. 11. The contention of the petitioners is that in the judgment of Rafiq Masih’s case (Supra), the Hon’ble Apex Court in its para 18, their Lordships have drawn some wider principles which are required to be followed for recovery of the amount already paid to an employee taking into consideration the hardship which will befall on the employee from whom the recovery is being sought to be made at a belated stage in particular these employees belonging to lower strata without there being any fault on their part, and that too from those employees belonging to category sustaining themselves with limited means. The wider principles as laid down have been as under:- (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ services). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. The wider principles as laid down have been as under:- (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ services). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover. 12. The contention of the learned counsel for the petitioners is that the action taken after about lapse of 9 years by the Respondents of each writ petitions in passing the impugned order dated 9th February, 2018 (and such other orders in other bunch of writ petitions) making an effort to recover an amount allegedly paid in excess at the time of pay fixation, settled on the basis of Government Order No. 74 dated 1st March, 2009. Its case of the respondents that as a result of an excess fixation of salary as a consequence of the enforcement of the recommendation of the 7th Pay Commission, the recovery was aimed to be made as the petitioners were illegally benefited by the wrongful decision of the authorities cause loss to state exchequer. 13. The petitioners’ case is that they are appointed substantively as against respective post held by them, in their respective departments and they have been rendering their services regularly for a considerable long time as against their respective years/date of appointments, and they are in service is a fact, which is not disputed in either of the three categories of the departments of the petitioners, where they are working. 14. 14. As far as the teachers are concerned (belonging to the first category of writ petitions) i.e. the issues in relation to the Education Department, the petitioners who are the Assistant Teachers (Primary School), they contend that they were appointed on the posts of Assistant Teachers (Primary School) and later on they have been promoted as Assistant Teacher in Junior High School, in Madhyamic Education i.e. in Junior High Schools, as per their eligibility on the basis of Rules and were granted the pay-scale of Rs. 9300/- to Rs. 34800/- with grade pay of Rs. 4600/-. Initially, the Assistant Teachers of Primary School were being paid scale of Rs. 4500-7000, this scale was later revised to Rs. 6500-10,500 along with corresponding pay band. The scale of the teachers was revised with the enforcement of the recommendation of the 6th Pay Commission vide Government Order No. 395 dated 17.10.2008 w.e.f. 01.01.2006 and Assistant Teachers were made entitled for scale of Rs. 9300 to Rs. 34,800 with grade pay of Rs. 4200/-. The petitioners’ case is further that the State by Government Order No. 25 dated 13.02.2009 decided that the teachers too would be entitled for the benefit of Government Order dated 17.10.2008. 15. According to the petitioners, an anomaly occurred in grant of pay scale and the benefit of the Government Order dated 17.10.2008 as enforced for Assistant Teachers by Government Order dated 13.02.2009, the benefit of enhanced scale enforced by virtue of two Government Orders were not being paid to Assistant Teachers who were appointed directly after 01.01.2006 and thus these teachers appointed after 01.01.2006 were getting lesser scale. The State in order to remove the said anomaly and disparity in pay scale, had issued another Government Order for these teachers to bring them at par. Hence by Government Order No. 41 dated 13.02.2009 the pay scale of Rs. 9300 to 34000 carrying pay band of Rs. 4600 was enforced which structured and provided basic pay of Rs. 17140/- to the petitioners. 16. As a result of the enforcement of Government Order No. 395 dated 17.10.2008 and Government Order No. 41 dated 13.02.2009, the State ultimately issued Government Order No. 74 dated 01.03.2009, by virtue of which the revised scale was paid to all teachers w.e.f. 01.01.2006 as per the recommendation of 6th Pay Commission. 17140/- to the petitioners. 16. As a result of the enforcement of Government Order No. 395 dated 17.10.2008 and Government Order No. 41 dated 13.02.2009, the State ultimately issued Government Order No. 74 dated 01.03.2009, by virtue of which the revised scale was paid to all teachers w.e.f. 01.01.2006 as per the recommendation of 6th Pay Commission. On reading of Government Order dated 01.03.2009, it was resolved to pay scale to all teachers the pay scale w.e.f. 01.04.2009 as being paid to Central Government Teachers. Thus consequentially the pay scale of Rs. 5500-9000 was upgraded to Rs. 7450 – 11500 and was replaced in pay band of Rs. 9300 – 34800 (grade pay Rs. 4600) with basic pay as Rs. 17140/-. Hence the petitioners who are Assistant Teachers in Junior High School was upgraded Rs. 9300 – 34800 with grade pay of Rs. 4600 and basic scale as Rs. 17140. 17. In order to assail the illegal action of recovery sought to be made by the respondents on the premise being arbitrary and illegal, petitioners’ case is further that when the recommendations were enforced by Government Order No. 74 dated 01.03.2009, the State later had issued a Government Order No. 302 dated 27.10.2009, which provided that whoever is dissatisfied that their scale was wrongly fixed and were affected due to the implementation of Government Order’s may object for. This government order intended to clarify any anomaly. Teachers’ case is that no such clarifactory options were invited from the teachers. 18. Ultimately State by Government Order No. 693 dated 21.10.2010, made it clear and brought all the Assistant Teachers (Junior School), under a homogenous class making all of them entitled for the scale as enforced by Government Order No. 74 dated 01.03.2009 and appendix attached thereto. The State is said to have issued Government Order No. 697 dated 11.09.2013 asking options from all employees of State government, if they have suffered any loss by the re-fixation of salary. Teachers’ case is that though not sustainable that the Government Order No. 697 dated 11.09.2013 was not communicated to the them. 19. Identical issues arising from pay fixation as consequence of enforcement of recommendation of 6th Pay Commission arose in Uttar Pradesh. The State of Uttar Pradesh issued a Government Order No. 2173 dated 09.06.2014 where the said anomaly was considered and resolved after giving opportunity. 20. 19. Identical issues arising from pay fixation as consequence of enforcement of recommendation of 6th Pay Commission arose in Uttar Pradesh. The State of Uttar Pradesh issued a Government Order No. 2173 dated 09.06.2014 where the said anomaly was considered and resolved after giving opportunity. 20. Its not only that the respondents by taking step further for enforcement of recommendation by Government Order No. 202 dated 17.10.2017 issued directions to the competent authorities for making payment of arrears from 01.01.2006 to 31.12.2016. Records show certain writ petition was filed before this Court; one of them being WPSS No. 2528 of 2017 which was disposed of by the coordinate Bench of this Court on 05.09.2017 with a direction to decide the representation, based on which a meeting was held on 09.01.2018 and impugned resolution was passed. 21. It is the case of the petitioners of the Education Department that on the basis of Government Order No. 74 dated 1st March, 2009, their pay-scale was revised to Rs. 9300 to Rs. 34800, which was carrying a grade pay of Rs. 4600 on the basis of the scale promotional order and their minimum pay-scale was fixed @ Rs. 17140/- including grade pay. 22. It is the case of the petitioners that the said revised pay-scale was made effective as back as in 2009 and benefit accruing from it are paid, the Director of Education is said to have held a meeting on 20th October, 2011, based on Hon’ble High Courts direction dated 05.09.2017, without any prior notice to petitioners. Admittedly, when meeting was held for the purposes of re-determining the question of so-called overpayment made as a consequence of the enforcement of the revised pay fixation, the employees likely to be affected by any decision was required to be noticed and heard, and admittedly in the meeting thus held by Director of Education on 20th October, 2011, none of the representatives of teachers were called upon to appear and to attend the meeting nor any such date was fixed or intimated for holding meeting, so as to enable the persons likely to be effected by any decision to have their say on the issue. 23. 23. The case of the petitioners is that by virtue of decision taken by the Committee on 20th October, 2011, it was decided by the respondents that the persons appointed/promoted after 1st January, 2006 they were kept outside the purview of the benefits accruing to the employees by virtue of the enforcement of the Government Order dated 1st March, 2009. Consequently, it was held that they would not be entitled for the minimum original salary of pay-scale of Rs. 17,140/- as fixed for them. By virtue of the same order and by the decision of the Committee dated 20th October, 2011, it was directed that all those incumbents who have been appointed after 17th October, 2008 would be entitled for the grant of the minimum original salary as fixed to Rs. 17,140/-. In the cadre as it is enforced in the Education Department, posts of Headmaster and Assistant Teachers (Junior)/LT Grade are promotional posts. 24. The Finance Controller, School Education, Uttarakhand had ultimately taken a decision on 8th November, 2011, on the basis of the recommendations of the Committee’s decision dated 20th October, 2011, that as per the meeting and the communication given thereto to his office to proceed to take an action to re-fix the salary and the amount which has already been paid in excess to the incumbents may be recovered back. Questioning the veracity of the Committee’s decision dated 20th October, 2011 pertaining to the re-fixation of the pay and recovery of the excess amount allegedly paid to the incumbents, admittedly, based on exclusive decisions of respondents various writ petitions were filed. One of leading writ petition being (WPSS No. 1243 of 2013) which came up for consideration before the coordinate Bench of this Court and the coordinate Bench of this Court allowed the writ petition on 16.05.2017 and quashed the decision of the Committee dated 20th October, 2011 on the basis of the judgment of the Hon’ble Apex Court reported in 2014 (8) SCC 883 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer). While parting with the judgment, the coordinate Bench of this Court held that a service benefit accruing to an employee by way of a salary or fixation of a scale is a property and would be falling within the purview of Article 300-A of the Constitution of India. Rafiq Masih (White Washer). While parting with the judgment, the coordinate Bench of this Court held that a service benefit accruing to an employee by way of a salary or fixation of a scale is a property and would be falling within the purview of Article 300-A of the Constitution of India. The judgment dated 16.05.2017 passed by the coordinate Bench of this Court is quoted hereunder: “Since, common questions of law and facts are involved in the above numbered writ petitions, hence, the same are being taken up together and are being adjudicated by this common order. However, to maintain clarity, the facts of WPSS No.1243 of 2013 have been taken into consideration. Petitioners were appointed as Assistant Teachers (LT grade) in the Education Department. A conscious decision has been taken by the State Government to afford them the benefit of 6th Pay Commission in the year 2006. However, surprisingly, without issuing the show-cause notice, the recommendation has been withdrawn on 20.10.2011. The petitioners should have been issued at least a show-cause notice before the benefit granted to the petitioner has been withdrawn unilaterally. There is violation of principles of natural justice. The salary is a property within a meaning of Article 300A of the Constitution of India. No persons can be deprived the same, save in accordance with law. Accordingly, the writ petitions are allowed. Impugned annexure dated 20.10.2011 is quashed and set-aside. However, liberty is reserved to the respondents to proceed with the matter strictly, in accordance with law, but while deciding the issue, the State shall take into consideration the judgment rendered by their Lordships of the Hon’ble Supreme Court in 2014 (8) SCC 883 .” 25. Hence the same cannot be directed to be withdrawn in an ex parte manner unilaterally in violation of principles of natural justice as being property under Article 300-A, nobody could be deprived his property (i.e. the salary herein), save in accordance with law. The said judgment was followed at a later stage by me in other writ petitions. Relevant part of the judgment in one of the writ petition being Writ Petition (S/S) No. 2687 of 2017 is quoted hereunder: “In the writ petition, the name of the petitioner nos. 9 and 17 will stand deleted, and the writ petition will not be treated as to be filed on their behalf, as they have not signed their Vakalatnama. Relevant part of the judgment in one of the writ petition being Writ Petition (S/S) No. 2687 of 2017 is quoted hereunder: “In the writ petition, the name of the petitioner nos. 9 and 17 will stand deleted, and the writ petition will not be treated as to be filed on their behalf, as they have not signed their Vakalatnama. However, it would be open for the petitioner nos. 9 and 17 to file afresh writ petition, if so advised. 2. The Registry cannot take the liberty to give reports according to their choice, contradictory reports in same nature of writ petition. They are being cautioned for future. 3. In writ petition No. 2679 of 2017 as decided today, the cause title of the respondent No. 3 has been identically described as that of the present writ petition which has been listed today by way of supplementary fresh list, wherein the Registry as reported in all the cases that the address of respondent no.3 is incomplete. Report of the Registry cannot be in contradiction, to the detriment of the litigants, filing the writ petition on the same cause of action. 4. Since the issue in the writ petition already stands concluded by the judgment rendered by the Coordinate Bench of this Court in WPSS No. 1243 of 2013 and WPSS No. 1555 of 2013 as decided on 16.05.2017, based on the judgment passed by Hon’ble Apex Court reported in 2014 (8) SCC 883 which has been subsequently followed by this Court too in WPSS No. 2679 of 2017 by the judgment rendered on 18.09.2017. 5. This writ petition too, is allowed in terms of the judgment rendered on 16.05.2017 in WPSS No. 1243 of 2013 and WPSS No. 1555 of 2013.” 26. In the second bunch of the writ petitions in relation to the Ayurvedic Pharmacists working in the department of Ayurvedic and Unani Services, Government of Uttarakhand, Dehradun. Their contention is that by the Government Order dated 4th August, 2017, the State Government on its unilateral decision had upgraded the pay scale of the pharmacists cadre of the Ayurvedic and Unani department. As consequence of the aforesaid Government Order, the pharmacists were being paid the Pay Band II of Rs. 5200 – Rs. 20200 with a grade pay of Rs. As consequence of the aforesaid Government Order, the pharmacists were being paid the Pay Band II of Rs. 5200 – Rs. 20200 with a grade pay of Rs. 2800; it provided that on a completion of two years of service, they would be entitled for non-functional pay scale of Rs. 9300-34800 with grade pay of Rs. 4200/-. As they were the recipient of the Pay Band II after the amendments made in the pay scale on the recommendation of 6th Pay Commission, they were granted the pay band on completion of two years of service. 27. It is the case of the petitioner of this bunch that the State Government by the Government Order No. 136 dated 7th September, 2016 further clarified the position regarding the fixation of the upgraded pay scale as payable, and the benefits of the Assured Career Progression Scheme, as would be admissible to the pharmacists. On scrutiny of the Government Order, it is specifically stated that up-gradation/amendment in the pay scale of the employees getting the pay-scale as admissible to any post would be payable with the pay scale as per the pay table mentioned in the Government Order No. 41 dated 13.02.2009. Ultimately, as a consequence of the enforcement of the Government Order No. 41 dated 13.02.2009, the upgraded pay scale was made effective by the Government Order dated 4th August, 2017 and the petitioners were paid the upgraded pay-scale. 28. It is the contention of the petitioners that by the impugned order dated 13th November, 2017, the respondents without given any show-cause notice or without giving any opportunity of hearing to the petitioner, withdrew the benefit of the upgraded/amended grade pay. The impugned order dated 13th November, 2017 as a matter of fact was passed after partial amendment of the Government Order No. 202 dated 17th September, 2017. The grievance of the petitioner was that on scrutiny of the Government Order dated 13th November, 2017 to be read with the consequential order passed by the District Ayurvedic and Unani Officer on 21st March, 2018, whereby he has recommended for the recovery of the amount which was purportedly contended that it was wrongly paid as a consequence of the revision of the pay scale. This order too does not speak about or reflected that the petitioners were heard and it is also the case of the petitioner that in a step forward for compliance of the order dated 21st March, 2018 the respondents proceeded to recover the amount in the month of March, 2018. Petitioners raised their grievances initially by filing a representation dated 6th April, 2018 and when no decision was taken, they were constrained to file the writ petition benign WPSS No. 1745 of 2012. The coordinate Bench of this Court vide its judgment dated 18th March, 2018 had allowed the writ petition after considering the impact of Rafiq Masih’s case (Supra). Despite the judgment dated 18th March, 2018, the respondents proceeded to pass impugned order dated 7th April, 2018 directing to recover the amount as quantified in the order in case of each petitioners. 29. Precisely, the petitioners’ contention apart from the fact that the action of the respondents was violative of principles of natural justice had reiterated almost all the grounds which were agitated by the teachers of the Education Department and regard effect of Rafiq Masih’s case (Supra). 30. The third category of writ petition pertains to the Forest Department which has been filed through Uttarakhand Lekha Seva Sangh, agitating the cause of its members belonging to the accounts cadre of the employees of the forest department. In this writ petition, the contention of the petitioner No. 1 is that it is a recognized association of the accounts cadre of employees of the forest department and their recognition has been granted in terms of the Government Order No. 721/1 dated 12th September 2003. The petitioner No. 1, while filing the writ petition in the representative capacity on behalf of the employees of the forest department had questioned the action of the recovery of the amount on the ground that the Uttarakhand Government had issued directions for the implementation of the recommendation of the 6th Pay Committee and in pursuance to the decision taken by the Chief Secretary and the Committee thus constituted for considering revision of scale, the recommendations of the pay committee had thus issued a Government Order No. 2982/38-1-2003-13-NG/2002 dated 30th September, 2003 whereby according to the petitioners, the State Government took a decision to implement the same in Uttarakhand Village Development Department. 31. 31. By virtue of the Government Order No. 419 dated 13th September, 2005, it was decided by the department on their own decision to grant the benefit of the decision of the pay committee and its recommendation and consequently re-fix the pay scale of the Accountant/Accounts Audit Cadre w.e.f. 1st April, 2001. With the enforcement of the Government Order dated 13th September, 2005, the pay scale of the Assistant Accountants was revised to 4500-125-7000 pay scale as revised to 5500-175-9000 as payable to the other posts in the accounts cadre. The department of the respondents by its decision dated 24.02.2006 revised the pay-scale of accounts cadre on the recommendation of the Central Government and grant the benefit of the revised pay scale to the Assistant Accounts and Accountants w.e.f. 1st April, 2001 with a condition that the amount from 1st April, 2001 to 31st October, 2015 will be deposited in the provident funds of the employees and in an event it is not deposited, the same would be deposited in the National Savings Scheme and the employees who are retired would be given the amount in cash. 32. The Principal Chief Conservative of Forest, vide his decision dated 12th November, 2009 granted the pay scale as revised pay band II of Rs. 5200-20200 with grade pay of Rs. 2800 to Junior Accountants Clerks, who are working on a re-designation post of Assistant Accounts and completed 14 years of satisfactory services. The Finance Secretary is said to have by his order dated 24th December, 2009 revised the pay scale of the Accounts/Accounts Audit cadre to Rs. 7450 to Rs. 11500 with grade pay of Rs. 4800 for Assistant Accountant/Assistant Treasury Officers to whom the pay-scale of Rs. 7500-12000 with a grade pay of Rs. 5400 was payable. 33. As per the policy decision of the State dated 8th March, 2011, the Finance Secretary of State of Uttarakhand vide its order dated 8th March, 2011 provided the ACP for the State employees who have completed 10, 18 and 26 years of services. 7500-12000 with a grade pay of Rs. 5400 was payable. 33. As per the policy decision of the State dated 8th March, 2011, the Finance Secretary of State of Uttarakhand vide its order dated 8th March, 2011 provided the ACP for the State employees who have completed 10, 18 and 26 years of services. The recommendation as made by the order dated 8th March, 2011 of the Finance Secretary was enforced by the order dated 1st July, 2013 passed by the Principal Secretary, Finance, Government of Uttarakhand, whereby all the Secretaries and head of the departments were directed to grant the benefit of the ACP to the employees of the Government on their satisfactory completion of 10, 18 and 26 years of services. The Government Order dated 6th November, 2013 enforcing the recommendations of the ACP was subsequently amended and allowed and grant the promoted pay scale in the grade pay of Rs. 4800/- to those employees to whom there is no promotion avenue available. Hence on the basis of the above decision, the same was given to the employees and they were being paid the scale of Rs. 15600-39100 with a grade pay of Rs. 5400 instead of the pay scale of Rs. 9300-34800 with a grade pay of Rs. 4600/-. This enhanced pay scale was being paid w.e.f. 1st November, 2013. It says that by the letter of the Secretary, Rural Development Department dated 6th August, 2017 has addressed to the Commissioner, Rural Development of Pauri by referring to the Government Order dated 8th March, 2011 written by the Finance Secretary providing the benefit of ACP to the State employees and the Government order dated 5th November, 2013 directing to restructuring the cadre of Junior Accounts Clerk and by the re-designation and as Assistant Accounts along with pay and granting them a grade pay of Rs. 4200 after 10 years of service with grade pay of Rs. 4800/- after 16 years of service and 3rd pay band after 26 years of service in the pay scale of Rs. 15600-39100 with a grade pay of Rs. 5400/- as promoted pay-scale was given. By the impugned orders under challenge in the writ petition, the revised pay-scale as paid to the petitioner was being sought to be recovered which has been put to challenge by the petitioners in the writ petition. 34. 15600-39100 with a grade pay of Rs. 5400/- as promoted pay-scale was given. By the impugned orders under challenge in the writ petition, the revised pay-scale as paid to the petitioner was being sought to be recovered which has been put to challenge by the petitioners in the writ petition. 34. Apparently, this Court is also of a considered view that a recovery of the amount from the salary already paid bonafidely to the incumbents by making deduction or recovery has a serious consequence, more particularly, when it is intended to be made against the lower cadre of employees who have limited financial resources to sustain themselves, because major part of their earning is used for sustaining themselves and their families and they are hardly able to make any savings or when it intends to be made against a retired employee who too sustains on the reduced remuneration. This Court also is of the view that even if in those circumstances where the excess payment of the salary has been made wrongfully to an employee, in that eventuality also, the authorities cannot sit for a long period or for an indefinite period and then at a later stage wake up from the deep slumber and take an action belatedly for recovering the amount, because, the belated recovery too has a severe consequence on the employees. Hence, the Hon’ble Apex Court has postulated that if at all a recovery is intended to be made, it should be at least before 5 years period from the date when actual payment was made. The Hon’ble Apex Court has also laid down that since the recovery if made from an employee would be iniquitous, harsh and arbitrary it would outweigh the balance of the employer’s right to recover. 35. It is based on the decision of the Committee dated 20th October, 2011, the direction of the Finance Controller as referred above, the order dated 9th January, 2018 has been passed by the competent authority in each set of above writ petitions, wherein the direction has been issued to recover the amount from the incumbents. 36. 35. It is based on the decision of the Committee dated 20th October, 2011, the direction of the Finance Controller as referred above, the order dated 9th January, 2018 has been passed by the competent authority in each set of above writ petitions, wherein the direction has been issued to recover the amount from the incumbents. 36. The case of the petitioner is that the decision of the Samiti as enforced on 9th January, 2018 and directing to recover the excess amount paid as consequence of re-fixation of the pay-scale to the incumbents from their future salary or from any arrears or retrial dues payable to the them could only be done in the light of the reference to the parameters as laid by the judgment rendered in Rafiq Masih’s case (supra). 37. The contention of the petitioner is that the fitment table which has been annexed with the Government Order dated 1st March, 2009, as at the relevant time petitioners were getting the total minimum salary of Rs. 44,900 and based on that the minimum total salary payable has been fixed at Rs. 58,900 w.e.f. 1st January, 2017 and henceforth the fixation made happens to be just and proper and ought not to be recovered in the manner it has been done by the impugned order dated 9th February, 2018. What has been said above, one aspect which is quite apparent is that as a matter of fact by decision taken by the respondent, admittedly for the revised pay-scale stood settled by the decision of the respondent themselves in favour of the petitioners, it is further revealed from the scrutiny of the decision of the Committee dated 20th October, 2011 and subsequent orders passed thereto on the basis of which the recovery has been sought to be made apart from being belated is bad because the payment of the revised pay-scale was made in the year 2009 and the decision of the Committee was taken on 20th October, 2011 and based on it, the recovery has been now sought to be made in 2018 i.e. almost after 9 years of its actual payment being made to the petitioners. This act of recovery at a belated stage is contrary to the directives issued by the Hon’ble Apex Court in Rafiq Mashih’s case (Supra). 38. This act of recovery at a belated stage is contrary to the directives issued by the Hon’ble Apex Court in Rafiq Mashih’s case (Supra). 38. As already observed above that salary constitutes to be a property within the meaning under Article 300A of the Constitution of India. If there happens to be any bleakest situation where it has been wrongfully paid and if at all if it is required to be recovered, in that eventuality, it could only be in accordance with procedure provided under law. Meaning thereby, it cannot be recovered by a unilateral act or decision taken by the respondent without the participation of the persons against whom the excess payment is alleged to have been made and from whom the recovery is being sought to be made. On scrutiny of any of the communications ever since 20th October, 2011 or even to say since 2009 when the revised scale was paid to the petitioner i.e. the decision of the Committee or till passing of the impugned order dated 9th February, 2018, none of the orders reflect that at any stage or point of time, the petitioners were given prior notice and they were called upon by notice duly served, to participate in the proceedings to enable them to have their save in the proceedings because any proceedings drawn for recovery of the amount will have ultimate bearing on the rights of the petitioners deprivation of salary earned by them which has been held to be a property. 39. At this stage, this Court, in view of analogy and logic assigned above, is of the considered view and feels it appropriate to point out that it would be apt to clear that while this Court is deciding these bunch of writ petitions, it may not be construed that as if this is an adjudication on the merits of claim for the revised pay-scale or entitlement of the petitioners to get revised scale, as has been paid to them or the liability of the respondents to pay revised pay-scale as per the law applicable. It is only an adjudication from limited view point that since a right was conferred and settled by way of payment of the revised pay-scale in favour of the petitioners by a voluntary act of authorities, without any influence or misrepresentation or fraud exercised by the petitioners or by misleading or distortion of facts or law, its recovery should have been made if at all permissible under law it would be only after giving an opportunity of hearing to the petitioners which has not been admittedly provided to the petitioners. As such the impugned order dated 9th February, 2018 (and such other impugned orders passed in bunch of other writ petitions) do not satisfy the test of reasonableness and violates the principles of natural justice and not equivotus because any action taken of recovering the amount will obviously have a civil consequence, hence it ought to have been made only after providing an opportunity of hearing which lacks in the present case. 40. On that limited score only all these writ petitions would stand allowed. All the impugned orders passed in each set of writ petitions (as detailed above) would stand quashed. However, this will not preclude or prejudice the rights of the respondents to take a fresh action on the same facts and conditions, but only after providing an opportunity of hearing to the petitioners and after recourse as permissible under law by adopting the parameters laid down by Hon’ble Apex Court in Rafiq Masih’s case (Supra). During the period in which the respondents take an action in pursuance to today’s judgment, the recovery as sought to be made would be kept in abeyance unless determined afresh, after providing an opportunity to the petitioners. However there is one more clarification required to be made at this juncture that the recovery as sought to be made would be exclusively dependent upon the decision which has to be taken by the respondents after providing an opportunity to the petitioners in pursuance of today’s order. Respondents are also directed that till the time they take a decision the orders pertaining to the recovery and reduction of pay scale too would be kept in abeyance. 41. Subject to the above observations, writ petitions stand disposed of. 42. However, there would be no order as to costs.