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2021 DIGILAW 593 (GUJ)

STATE OF GUJARAT v. STATE OF GUJARAT

2021-07-16

SANGEETA K.VISHEN, SONIA GOKANI

body2021
ORDER : SANGEETA K. VISHEN, J. 1. By this appeal, the appellants have challenged the judgment dated 30.11.2017 passed by the learned single Judge whereby, the writ petition filed by the respondents, that is, original petitioners, has been allowed and the order dated 22.12.2011 passed by the Joint Director (Accounts) has been restored with a further direction to the appellants to take necessary steps and make all payments in light of the order dated 22.12.2011 in accordance with the Rules, within a period of three months. 2. The brief facts, leading to the filing of the present appeal, are to the effect that the respondents, that is, the original petitioners (hereinafter referred to as 'the petitioners') have preferred the captioned writ petition seeking declaration that the decision dated 2.3.2013 and dated nil 2013 taken by the appellant No.3 as arbitrary, illegal, unjust; with a further prayer to quash and set aside the said decision and to pay the amount of arrears to the petitioners with 12% interest. The petitioners were, inter alia, aggrieved by the order dated 2.3.2013 passed by the appellant No.3, i.e. Deputy Director (Accounts), Office of the Director of Agriculture whereby, the pay of the petitioners as on 1.1.1986 was fixed at Rs.3,500/- and the date of increment was 1.1.1987. The writ petition filed by the petitioners came to be allowed with the aforesaid directions. Being aggrieved the appellants have filed the captioned Letters Patent Appeal. 3. Mr. Jayneel Parikh, learned Assistant Government Pleader appearing for the appellants submitted that the respondents, were working as Assistant Directors with the appellants and have retired in the years 1991 and 1992 respectively. The petitioners had raised an issue of stepping up in their pay scale, initially, before the State Authority and thereafter, by filing Special Civil Application No.7982 of 2009 before this Hon'ble Court. This Hon'ble Court, vide order dated 1.9.2009, had disposed of the writ petition directing the appellants (hereinafter referred to as 'the respondents') to consider the case of the petitioners for stepping up in line with that of Shri G.N. Trivedi, who was junior and has been granted the benefit of stepping up. It is submitted that this Hon’ble Court directed the respondents to grant similar treatment of stepping up to the petitioners within a period of four weeks. It is submitted that this Hon’ble Court directed the respondents to grant similar treatment of stepping up to the petitioners within a period of four weeks. 3.1 It is next submitted that in conformity with the directions contained in the order dated 1.9.2009, the State Government in its Agriculture & Cooperation Department, vide order dated 24.2.2011 took a decision to extend the benefit, at par with the benefit extended to Shri G.N. Trivedi. By said order, the petitioners pay was fixed at Rs.3,500/- with effect from 1.1.1986 and the date of increment was fixed as 1.1.1987. It is further submitted that after the order dated 24.2.2011, the file was thereafter processed by the office of the Director of Agriculture, when a decision was taken by the Joint Director (Accounts) on 22.12.2011, whereby, the petitioners pay was fixed at Rs.780/- with effect from 1.4.1973 for DNI with effect from 1.4.1974. Thereafter, in the year 2013, a detailed consequential order dated 2.3.2013 came to be passed, communicating the petitioners the detailed break-up of their pay for the period from 1.4.1973 to 1.1.1991, that is, the date of retirement. It is further submitted that the said pay fixation was in conformity with the resolution dated 1.6.1987 issued by the Finance Department and more particularly, Rule 7 read with notes 6 and 8. 3.2 It is further submitted that as is clear from the order dated 12.1.2001 passed by the Agriculture & Cooperation Department in the case of Shri G.N. Trivedi, who was junior to the petitioners, was granted deemed date of his junior officer Shri J.M. Gajjar. The pay of Shri G.N. Trivedi, Deputy Director (Agriculture) was fixed at Rs.3,500/- with effect from 1.1.1986 and the date of increment was 1.1.1987. Therefore, as directed by this Hon'ble Court vide order dated 1.9.2009, the State Government in its Agriculture & Cooperation Department and in conformity with the Rules and Regulations governing the pay, passed the order dated 24.2.2011. Therefore, no error has been committed by the State Government or for that matter by the office of the Director of Agriculture. Therefore, the learned single Judge ought not to have allowed the writ petition, directing the respondents to restore the order dated 22.12.2011 passed by the Joint Director (Accounts), which order was not in conformity with the order dated 24.2.2011 passed by the State Government. Therefore, the learned single Judge ought not to have allowed the writ petition, directing the respondents to restore the order dated 22.12.2011 passed by the Joint Director (Accounts), which order was not in conformity with the order dated 24.2.2011 passed by the State Government. 3.3 It is further submitted that a bare perusal, of the impugned order dated 30.11.2017 passed by the learned single Judge, clearly suggests that the learned single Judge has not considered the provisions contained in the Government Resolution dated 1.6.1987. Had the learned single Judge considered the conditions governing the pay scale, the petition would have been dismissed. It is further submitted that under the circumstances, the learned single Judge has committed an error in law as well as on facts in passing the oral order dated 30.11.2017 and consequently, directing the respondent – State Government to take necessary steps and make the payments to the petitioners in tune with the order dated 22.12.2011 passed by the Joint Director. It is therefore, urged that the present appeal deserves to be allowed. 4. Ms. Reema Kamani, learned advocate for Mr. P.H. Pathak, learned advocate for the original petitioners submitted that the petitioners were working as Assistant Directors with the respondent department and have retired in the year 1991 and 1992 respectively. It is submitted that the respondent had passed various orders whereby, juniors to the petitioners were given the benefit of stepping up in the pay scale; however, for the reasons best known to the respondents, the said benefits were not extended to the petitioners. 4.1 Being aggrieved, the petitioners made representations; however, were of no avail. Ultimately, with a view to seeing that the grievance of the petitioners is finally redressed, the petitioners, after issuing notices, preferred writ petition being Special Civil Application No.7982 of 2009 and this Hon’ble Court was kind enough to issue direction to the respondents to extend the benefits of stepping up of pay to the petitioners in line with that of Shri G.N. Trivedi. The respondents have committed an error in fixing the pay though the pay has been fixed with effect from 1.1.1986 at the rate of Rs.3,500/- the respondents have fixed the date of increment as on 1.1.1987 and not 1.2.1986. The respondents have committed an error in fixing the pay though the pay has been fixed with effect from 1.1.1986 at the rate of Rs.3,500/- the respondents have fixed the date of increment as on 1.1.1987 and not 1.2.1986. Therefore, the petitioners have been subjected to injustice and that therefore, the learned single Judge has rightly allowed the writ petition for, the order dated 22.12.2011 passed by the Joint Director (Accounts) was in the right earnest. 4.2 It is further submitted that after passing of the order dated 1.9.2009 by this Court, the Joint Director (Accounts) had accepted the claim of the petitioners and that is how the order dated 22.12.2011 was passed, fixing the pay of the petitioners. Accordingly, the respondents had to implement the order; however, instead of acting as per the fixation of pay done by the Joint Director (Accounts), his subordinate officer, that is, the Deputy Director had passed an order dated 2.3.2013 and Nil, 2013 altering the pay, which was contrary to the order passed by this Hon’ble Court. 4.3 It is submitted that the Deputy Director had not even cared to implement the fixation of pay as done by the Joint Director (Accounts) and with a mala fide intention had an audacity to act in a total arbitrary manner. It is submitted that the Joint Director (Accounts), had rightly fixed the pay of the petitioners vide order dated 11.1.1999, treating the petitioners in Class-II posts and fixing the basic pay at Rs.3,300/- as on January, 1986. However, the Deputy Director while fixing the pay of the petitioners vide order dated Nil, 2013, fixed the same in the scale of Rs.3,500/- with effect from 1.1.1986 which was the scale of Class-I post, which was never occupied by the petitioners. It is also alleged that the amount of arrears is not paid and the issue of notional payment will arise as the petitioners have not worked on the post in Class-I It is submitted that the said act on the part of the Deputy Director was only with a view to denying the petitioners the actual benefits of scale of pay treating the period from 1982 to 1991 as notional. 4.4 It is submitted that as per the new Pay Commission recommended with effect from 1.1.1986 and thereafter, whatever date of increment which would have enured, the same was required to be continued; as against this, the respondents have fixed the date of increment as 13.2.1980 and 1.1.1987 which is an error committed by the authorities for, after 1.1.1986, the date of increment has to be 13.2.1986 and not 1.1.1987. It is therefore, submitted that the said action on the part of the respondents clearly smacks of arbitrariness and is mala fide exercise of power as well as in violation of Articles 14 and 16 of the Constitution of India. 4.5 While concluding, it is submitted that by fixing the pay of the petitioners, the Joint Director (Accounts) has rightly fixed pay as per Class-II and Class-I respectively and accordingly, the date of increment was fixed, but the respondent no.3, i.e. the Deputy Director going beyond the order of the Joint Director, unilaterally altered the said fixation and made a joint fixation which has resulted into great injustice to the petitioners and therefore, pay fixation by the respondent no.3, i.e. Deputy Director, was rightly quashed by the learned single Judge and has rightly restored the order dated 22.12.2011, directing further payment to be given to the petitioners in accordance with Rules. Therefore, no error can be said to have been committed by the learned single Judge and thus, the order dated 30.11.2017 passed by the learned single Judge, does not deserve to be interfered with. 5. Heard Mr. Jayneel Parikh, learned Assistant Government Pleader for the appellants- respondents and Ms. Reema Kamani, learned advocate for Mr. P.H. Pathak, learned advocate for the respondents- petitioners. 6. The brief facts, as culled out from the record of the captioned appeal and touching the controversy are to the effect that the petitioners were working as Assistant Directors with the respondent department and had retired in the year 1991 and 1992 respectively. The petitioners were aggrieved by various orders passed by the department whereby, the juniors to the petitioners were given the benefit of stepping up of the pay; however, the petitioners were left out. The petitioners, after making various representations, preferred the writ petition before this Court being Special Civil Application No.7982 of 2009 and this Court, vide order dated 1.9.2009 disposed of the same with the following directions. The petitioners, after making various representations, preferred the writ petition before this Court being Special Civil Application No.7982 of 2009 and this Court, vide order dated 1.9.2009 disposed of the same with the following directions. The relevant paragraphs 2 to 4 are reproduced herein below for ready reference: “2. Shri Kishor Paul, learned advocate appearing on behalf of the petitioner has submitted that one another employee i.e. Shri G.N. Trivedi, has been granted the benefit of stepping up pay-scale, who is similarly situated to that of the petitioner. However, the benefit of such stepping up has not been granted to the petitioner, though requested by the petitioner time and again, only on the ground that the service book of Shri G.N.Trivedi is not traceable. 3. In response to the notice issued by this Court, Shri Shivang Shukla, learned AGP has appeared on behalf of the respondent and under the instructions of Shri C. K. Kharadi, Assistant Administrative Officer, Office of the Director of Agriculture, he has submitted that now the service book of Shri G.N. Trivedi is traced out, however, there is no entry with respect to the grant of stepping up to Shri G.N. Trivedi in the service book of Shri G.N. Trivedi. Shri Shivang Shukla, learned AGP has submitted that still the case of the petitioner shall be considered in line with that of Shri G.N. Trivedi and if on verification it is found that Shri G.N. Trivedi has been granted the stepping up, the case of the petitioner shall be considered accordingly. However, he has requested for some time to verify the same. 4. In view of the above, the present Special Civil Application is disposed of by directing the respondent to consider the case of the petitioner for stepping up in line with that of Shri G.N.Trivedi within a period of eight weeks from today and if it is found that Shri G.N. Trivedi has been granted the benefit of stepping up, in that case, the respondent is directed to grant similar treatment of stepping up to the petitioner within a period of four weeks thereafter and communicate the outcome of the same to the petitioner. In case the petitioner is aggrieved by any of the decision it will always be open for the petitioner to challenge the same, which can be considered in accordance with law on its own merits.” A bare reading of paragraph 2 suggests that the grievance of the petitioners was to the effect that one another employee, Shri G.N. Trivedi has been granted the benefit of stepping up of pay scale, who is similarly situated to that of the petitioners; however, the benefit of such stepping up has not been extended to the petitioners though requested several times. In paragraph 3, the statement made by the learned Assistant Government Pleader has been recorded, that since the service book of Shri G.N. Trivedi is traced out, the case of the petitioners shall be considered in line with that of Shri G.N. Trivedi and if on verification it is found that Shri G.N. Trivedi has been granted the stepping up, the case of the petitioners shall be considered accordingly. Consequently, this Court, in paragraph 4 has directed the respondents to consider the case of the petitioners for stepping up in line with that of Shri G.N. Trivedi and if it is found that Shri G.N. Trivedi has been granted benefit of stepping up, in that case, the respondents were directed to grant similar treatment of stepping up to the petitioners. 7. Therefore, what is required to be seen is, the order dated 12.1.2001 passed by the State Government in its Agriculture & Cooperation Department in the case of Shri G.N. Trivedi, extending the benefit of the stepping up. By the said order, Shri G.N. Trivedi (retired Assistant Director (Agriculture), Class- II) was given the deemed date of 14.8.1981 of Deputy Director (Agriculture), Class-I and the pay of Rs.3,500/- was fixed as on 1.1.1986 of junior officer Shri J.M. Gajjar, Deputy Director (Agriculture), Class-I. The order further reads that owing to the stepping up of the pay of Shri G.N. Trivedi, Deputy Director (Agriculture), Class-I, his pay as on 1.1.1986 would be Rs.3,500/- and the date of increment would be 1.1.1987. The order further records that the pay fixation shall be on notional basis. The order further records that the pay fixation shall be on notional basis. Therefore, as is clear from the order dated 12.1.2001 passed by the State Government, Shri G.N. Trivedi was given the deemed date of 14.8.1981 of Deputy Director Agriculture (Class-I) and accordingly his pay was stepped up to Rs.3,500/- as on 1.1.1986 and the date of increment as 1.1.1987. The said benefit was extended on notional basis. 8. As discussed herein above and as recorded in paragraph 2 of the order dated 1.9.2009, the grievance of the petitioners was to grant benefit of stepping up at par with the benefit given to Shri G.N. Trivedi, retired Assistant Director (Agriculture), Class-II. Therefore, the State Government in its Agriculture & Cooperation Department vide order dated 24.2.2011 extended similar benefits to the petitioners that was granted to Shri G.N. Trivedi. The order dated 24.2.2011 passed by the Agriculture & Cooperation Department clearly records that the junior Shri G.N. Trivedi to the petitioners has been extended the benefit of pay of Rs.3,500/- for the post of Deputy Director (Agriculture) (Class-I) with effect from 1.1.1986 and the petitioners are extended the benefit of stepping up of pay of Rs.3,500/-. Therefore, the State Government in conformity with the direction issued by this Court, vide order dated 1.9.2009, has put the petitioners in the pay scale of Rs.3,500/- and accordingly, the increment was extended with effect from 1.1.1987. 9. The order dated 24.2.2011 thereafter has travelled to the office of the Director of Agriculture and office order dated 22.12.2011 has been passed by Joint Director (Accounts), Gandhinagar; however, the said order does not appear to have been served upon the petitioners at any point of time for, the decision appears to have been taken on file and not processed and finalised. Besides, on the basis of the order dated 24.2.2011, the Deputy Director (Accounts), office of the Director (Agriculture) has passed the order dated 2.3.2013 and detailed order dated Nil, 2013 providing the break-up of further calculation. 10. At this stage, the condition contained in the Government Resolution dated 1.6.1987 issued by the Finance Department is worth referring to. Rules 7 and 8 relevant extracts whereof read thus:- “7. 10. At this stage, the condition contained in the Government Resolution dated 1.6.1987 issued by the Finance Department is worth referring to. Rules 7 and 8 relevant extracts whereof read thus:- “7. Fixation of initial pay in the revised scale of pay: (1) The initial pay of a Government servant who elects, or is demand to have elected under sub-rule (3) of rule 6 to the governed by the revised scale of pay on and from the 1st day of January, 1986, and of persons to whom sub-rule (5) of rule 6 applies shall, unless in any case the Government by special order or otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or world have held a lien if his lien had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely: In the case of all employees: (i) an amount representing 20 per cent of the basic pay in the existing scale of pay, subject to minimum of Rs. 75, shall be added to the existing emoluments of the employee : (ii) after the existing emoluments have been so increased, the pay shall thereafter be fixed in the revised scale of pay at the stage next above the amount thus computed : Provided that : (a) if the amount so arrived at is less than the minimum of the revised scale of Pay, the Pay shall be fixed at the minimum of the revised scale of pay, and (b) if the amount so arrived at is more than the maximum of the revised scale of pay, the pay shall be fixed at the maximum of that scale. Note 1.- Where a Government servant while holding a permanent post is officiating in a higher post on a regular basis and the scales of pay applicable to the two posts are merged in to one scale of pay, the pay of such Government servant shall be fixed under this sub-rule with reference to his officiating post only and the pay so fixed shall be treated as his substantive pay. Explanation.- The provisions of this Note shall apply, mutatis mutandis, to Government servants holding in an officiating capacity posts in different existing scales of pay which have been replaced by a single revised scale of pay. Explanation.- The provisions of this Note shall apply, mutatis mutandis, to Government servants holding in an officiating capacity posts in different existing scales of pay which have been replaced by a single revised scale of pay. Note 2.- Where the existing emoluments as calculated in accordance with this sub-rule exceed the revised emoluments in the case of any Government servant, the excess shall be allowed as personal pay to be absorbed in future increases in pay. Note 3.- Where in the fixation of pay under this sub rule, the pay of Government servants drawing pay more than five consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised scale at the same stage, the pay in the revised scale of such of these Government servants who are drawing pay beyond the first five consecutive stages in the existing scales shall be stepped up to the stage where such bunching occurs, as under, by the grant of increment in the revised scale in the following manner, namely : (a) for Government servants drawing pay from the 6th upto the 10th stage in the existing scale by one increment ; (b) for Government servants drawing pay from the 11th upto the 15th stage in the existing scale if there is bunching beyond the 10th stage by two increments ; (c) for Government servants drawing pay from the 16th upto the 20th stage in the existing scale, if there is bunching beyond the 15th stage by three increments ; If by stepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised scale which is higher than the stage in the revised scale at which the pay of a Government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up to the extent by which it falls short of that of the former. Note 4.- Where, in the fixation of pay under this sub-rule, pay of a Government servant, who, in the existing scale of pay was drawing immediately before the 1st day of January, 1986, more pay than another Government servant junior to him in the same cadre, gets fixed in the revised scale of pay at a stage lower than that of such junior, his pay shall be stepped up to the same stage in the revised scale of pay a that of the junior. Note 5.- Where a Government servant is in receipt of personal pay on the 1st day of January, 1986, which together with his existing emoluments as calculated in accordance with this subrule exceeds the revised emoluments, then, such excess shall be allowed to such Government servant as personal pay to be absorbed in future increases in pay. Note 6.- In the cases, where a senior, Government servant who is promoted to a higher post before the 1st day of January, 1986 draws less pay in the revised scale of pay then his junior who is promoted to the higher post on or after the 1st day of January, 1986, the pay of the senior Government servant shall be stepped upto an amount equal to the pay as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfillment of the following conditions, namely : (a) Both the junior and the senior Government servants belong to the same cadre and the post in which they have been promoted are identical in the same cadre ; (b) The pre-revised and revised scales of pay of the lower and higher posts in which they aers entitled to draw pay are identical and ; (c) The anomaly is directly a result of application of the provisions of rule 41 of the Bombay Civil Service Rules, 1959 or any other Rule or order regulating pay fixation on such promotion in the revised scale of pay. When even in the lower post the junior officer was drawing more pay in the pree revised scale of pay than the senior by virtue of any advance increments granted to him provisions of this Note shall not apply. When even in the lower post the junior officer was drawing more pay in the pree revised scale of pay than the senior by virtue of any advance increments granted to him provisions of this Note shall not apply. (2) Subject to the provisions of rule 5, if the pay as fixed in the officiating post under sub-rule 1(1) is lower than the pay fixed in the substantive post, the former shall be fixed at the stage next above he substantive pay. 8. Date of next increment in the revised scale of pay. - The next increment of Government servant whose pay has been fixed in the revised scale in accordance with sub-rule (1) of rule 7 shall be granted on the date he would have drawn his increments had he continued in the existing scale. Provided that in the cases where the pay of a Government servant is stepped up in terms of Note 3 or Note 4 or Note 6 below sub-rule (1) of rule 7, the next increment shall be granted on the completion of qualifying service of twelve months from the date of the stepping up of the pay in the revised scale of pay. Provided further that in the cases other than that covered by the preceding provision the next increment of a Government servant whose pay is fixed on the 1st day of January, 1986 at the same state as the one fixed for another Government servant junior to him in the same cadre and drawing pay at a lower stage than the stage at which he draws in the existing scale, shall be granted on the same date as admissible to his junior, if the date of increment of the junior happens to be earlier : Provided also that in the case of persons who had been drawing minimum of the existing scale for more than a year as on the 1st day of January, 1986, next increment in the revised scale shall be allowed on the 1st day of January, 1986; Note 1. - Wherever the pay has been fixed under these rules the efficiency bar will become operative only with reference to such bars in the revised scales irrespective of whether a Government servant had crossed or not crossed or had been held up at the efficiency bar in the existing scale. Note 2. - Wherever the pay has been fixed under these rules the efficiency bar will become operative only with reference to such bars in the revised scales irrespective of whether a Government servant had crossed or not crossed or had been held up at the efficiency bar in the existing scale. Note 2. - Where by the grant of an increment in terms of the third proviso in the revised scales applicable to the substantive post, the substantive pay of a Government servant exceeds his officiating pa at any time, the Government servant may be allowed in addition to officiating pay, the difference between the officiating pay and substantive pay as personal pay to be absorbed in future increments for the periods during which the substantive pay exceeds the officiating pay.” 11. Rule 7 deals with fixation of initial pay in the revised scale. Note 6 to Rule 7, provides that in case where a senior government servant promoted to a higher post before 1.1.1986, draws less pay in the revised scale, than, his junior who is promoted to the higher post on or after 1.1.1986, the pay of the senior government servant shall be stepped up to an amount equal to the pay as fixed for his junior in that higher post. It further provides that the stepping up shall be done with effect from the date of promotion of the junior government servant subject to the fulfillment of the conditions as laid down therein. Rule 8 provides for date of increment in the revised scale. Sub-rule (1) provides that the next increment of a government servant whose pay has been fixed in the revised scale in accordance with sub-rule (1) of Rule 7 shall be granted on the date he would have drawn his increment, had he continued in the existing scale. Proviso to sub-rule (1) of Rule 8 provides that in cases where the pay of a government servant is stepped up, inter alia, in terms of Note 6 of sub-rule (1) of Rule 7, the next increment shall be granted on the completion of qualifying service of 12 months from the date of the stepping up of the pay in the revised scale. 12. 12. Therefore, the respondent – State, in conformity with the direction contained in the order dated 1.9.2009 read with the Revision of Pay Rules, 1986 and more particularly, Rule 7 read with Note 6, has fixed the pay of the petitioners with effect from 1.1.1986 and as is clear from the proviso to sub-rule (1) of Rule 8, it provides for fixing the increment, after a period of 12 months from the date of the stepping up of the pay in the revised scale. Therefore, reading the Rule 7 in juxtaposition with note 6 and proviso to sub-rule (1) of Rule 8, the decision dated 24.2.2011 taken by the State Government was in right earnest and no error can be said to have been committed by the State Government in passing the order dated 24.2.2011, fixing the pay of the petitioners at Rs.3,500/- with effect from 1.1.1986 and the date of increment as 1.1.1987 at par with the case of Shri G.N. Trivedi, Deputy Director. 13. At this stage, it is also required to be noted that the petitioners in paragraph 6 of the memorandum of petition, has stated about the order dated 1.9.2009 passed by this Court and immediately thereafter, without making any reference of the order dated 24.2.2011, the petitioners have made averments to the following effect. Paragraphs 6 and 7 read thus:- “[6].. In light of the above contentions this Hon. Court has passed the order on 1.9.2009 for grant of stepping-up of pay to the petitioners at par with Mr. Gajjar and their juniors. [7].. That after the order passed by this Hon. Court the details asked for were submitted by the authority and ultimately the Joint Director (Accounts) has accepted the claim of the petitioners and issued an office order dated 22.12.2011 fixing up the pay of the petitioners. Copy of the order dated 22.12.2011 is annexed and marked as ANNEXURE-C to this petition. Accordingly the respondents have to implement the order. That instead of acting as per the fixation of pay done by the Joint Director (Accounts), his subordinate Deputy Director has passed an order on 2.3.2013 changing the fixation of the petitioners which is contrary to law and the order issued by this Hon'ble Court. Copy of the letter dated 2.3.2013 with enclosures are annexed and marked as ANNEXURE-D (colly) to this petition. Copy of the letter dated 2.3.2013 with enclosures are annexed and marked as ANNEXURE-D (colly) to this petition. Aggrieved by the said decision on the part of the Dy. Director who is not cared to implement the fixation of pay as done by the Joint Director (Accounts), the Dy. Director has acted with malafide intention and in total arbitrary manner which is required to be nipped in bud.” 14. Therefore, bare reading of paragraphs 6 and 7 clearly suggests that the petitioners did not make any reference of the order dated 24.2.2011 passed by the State Government in its Agriculture & Cooperation Department; more particularly, when the copies whereof were marked to the petitioners and have been served upon the petitioners. These orders were never challenged by the petitioners. The petitioners, in paragraph 7, have given an impression as if there was no order passed by the State Government. Further impression is sought to be created that the Joint Director, has passed the order dated 22.12.2011 and the Deputy Director, who is an officer junior to the Joint Director, overreaching the authority of the Joint Director, has passed the order dated 2.3.2013 and Nil, 2013, which could not have been done by him without offering any opportunity of hearing to the petitioners. The learned single Judge accordingly, in paragraph 5 has observed thus:- “5. Accordingly, the grievance of the petitioners came to be resolved. However, now, the real grievance of the petitioners is different inasmuch as after the above referred order dated 22.12.2011 was passed, an officer of rank lower than Joint Director passed order dated 24.2.2011and declared that the pay fixation which was made effective after stepping up, in respect of the petitioners shall be considered notional and they will be eligible for revised salary/increments w.e.f. 1.1.1987.” The observation by the learned single Judge is erroneous on two counts, one; the order dated 24.2.2011 was not passed by the officer lower in rank but the order is of the Agriculture & Cooperation Department of the State Government and second; the order was passed prior in point of time as it bears a date of Feburary 2011 which would be prior to December 2011. 15. The learned single Judge thereafter, in paragraph 7 reproducing the affidavit-in-reply filed by the State Government, has in paragraphs 8, 8.1, 8.2 and 9 observed thus: “8. 15. The learned single Judge thereafter, in paragraph 7 reproducing the affidavit-in-reply filed by the State Government, has in paragraphs 8, 8.1, 8.2 and 9 observed thus: “8. From the reply affidavit by the respondents, it comes out that, [a] the respondents have failed to offer any explanation in respect of the action of modifying the order dated 22.12.2011 passed by Joint Director. [b] Once the said decision was taken and order granting benefit of stepping up and revision in salary of the petitioners was passed, in absence of any strong justification, any modification could not have been made by the respondents. [c] Besides this, such modification could not have been made without granting effective hearing. [d] Furthermore, such modification could be made by Joint Director or any higher authority who may be competent as per the Rules but not have been made by the authority lower in rank than Joint Director. 8.1 The said modification in the order is made and subsequent orders dated 24.2.2011 are passed without granting opportunity of hearing to the petitioners. 8.2 The modification which subsequently came to be made could not have been made without issuing notice and without notice to the petitioners and without informing the petitioners about the reasons in light of which any modification is necessitated and without granting opportunity of hearing to the petitioners. 9. Since any ground for modifying the order dated 22.12.2011 passed by the Joint Director is not made out and since the order dated 24.2.2011are passed without granting opportunity of hearing to the petitioners, the said order dated24.2.2011 cannot be sustained. The said orders are hereby set aside.” 16. The learned single Judge in paragraph 8.1 while referring to the order dated 22.12.2011 of the Joint Director has observed that modification in the order dated 22.12.2011 is made and subsequent order dated 24.2.2011 is passed without granting opportunity of hearing to the petitioners. The learned single Judge has clearly erred in observing thus inasmuch as, as discussed hereinabove the order dated 24.2.2011 was passed prior in point of time and that too by the State Government in its Agriculture & Cooperation Department and it is thereafter, that the Joint Director, has passed the order dated 22.12.2011 which, was never served upon the petitioners so as to accrue any right in their favour. It is thereafter that the Deputy Director has passed the consequential order dated 2.3.2013 as well as office order dated Nil, 2013, fixing the pay of the petitioners. Therefore, the first order which was passed, was the order dated 24.2.2011 and thereafter, the office order was passed by the Joint Director and it is thereafter, that the Deputy Director, has passed the order dated 2.3.2013 as well as office order dated Nil, 2013 in tune with the order dated 24.2.2011. Therefore, it was the Joint Director, who, if at all, has passed any order, has gone beyond the order dated 24.2.2011 passed by the State Government in its Agriculture & Cooperation Department. Under the circumstances, observation by the learned Single Judge that the modification was effected by the Deputy Director of the order dated 22.12.2011, is nothing but an error apparent on the face of the record. 17. Besides, the learned single Judge proceeded on the erroneous premise for, the order of the Joint Director dated 22.12.2011 cannot be construed to be an order inasmuch as, the said order was passed on file and never served upon the petitioners. Since the order was never served or communicated to the petitioners, no right can be said to have been accrued in favour of the petitioners. In fact, if at all there was any order, it was the order dated 24.2.2011, which was accepted by the petitioners and not challenged. The learned single Judge therefore, erred in coming to the conclusion that the respondents have failed to offer any explanation in respect of the action of modifying the order dated 22.12.2011 passed by the Joint Director and further observing that once the said decision was taken and in absence of any strong justification, modification could not have been made. The learned single Judge also committed an error in observing that such modification in the order was made by subsequent order dated 24.2.2011, without granting opportunity of hearing to the petitioners. In fact, as discussed herein above, the order dated 24.2.2011 was passed prior to the order dated 22.12.2011 and not subsequent to the said order of the Joint Director. The learned single Judge also committed an error in observing that such modification in the order was made by subsequent order dated 24.2.2011, without granting opportunity of hearing to the petitioners. In fact, as discussed herein above, the order dated 24.2.2011 was passed prior to the order dated 22.12.2011 and not subsequent to the said order of the Joint Director. Therefore, there was no question of offering any opportunity of hearing to the petitioners while passing the order dated 2.3.2013 and office order dated Nil, 2013 by the Deputy Director (Agriculture) as the said orders were consequential and in furtherance of the order dated 24.2.2011. 18. Therefore, in view of the aforesaid discussion, the order dated 30.11.2017 passed by the learned single Judge is based on an erroneous finding; against the record and therefore, the oral judgment dated 30.11.2017 deserves to be quashed and set aside and is hereby quashed and set aside. 19. The appeal is allowed. No order as to costs. 20. The connected Civil Application is disposed of accordingly.