1 S.B.CIVIL WRIT PETITION NO. 3957/1997 Kanahiyalal Vyas Vs. R.T.D.C. & Anr. Date of Order :: 9.04.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr Teja Ram Choudhary for Mr. Vinay Jain, for the petitioner/s. Mr M.S. Singhvi, for the respondents. ... By way of filing a petition for writ (SBCivil Writ Petition No.2291/1987) the petitioner sought a direction to fix his pay in the pay scale of Rs. 370-890 from 28.8.1981 and in the pay scale Rs.500-860 w.e.f. 1.9.1981. The case of the petitioner was that he accepted offer for absorption of his service with Rajasthan Tourism Development Corporation Ltd. from the services of the Government of Rajasthan with a condition for protection of his earlier pay that is of Rs.370-590, but the respondent-corporation without saving that fixed the pay in the pay scales applicable with it for the post of Plumber. During pendency of the petition for writ aforesaid the respondent – Corporation by the office orders dated 31.5.1994, 22.4.1995, 23.10.1995 and 23.11.1995 redressed grievance agitated by the petitioner relating to fixation of his pay, but the fact aforesaid was not brought into knowledge of the Court, therefore, without noticing the same the petition for writ (SBCW No.2291/1987) was dismissed on merits by the order dated 28.1.1997. While rejecting the writ petition it was held that the petitioner was 2 rendered surplus with the State Government and he was offered alternative appointment with certain conditions, as such, it was not open for him to get absorption of service at his own-conditions. After dismissal of the writ petition the Executive Director of the respondent-Corporation passed an order dated 8.10.1997 withdrawing the orders protecting the pay scale in which the petitioner was working before his absorption with services of the Corporation. Being aggrieved by the same this petition for writ is preferred. It is contended by learned counsel for the petitioner that respondents at their own while issuing certain orders redressed grievance of the petitioner that was subject matter of SBCivil Writ Petition No.2291/1987, therefore, dismissal of the writ petition aforesaid can not be a reason to withdraw the relief already granted. It is also stated that withdrawal of the pay fixation made after protecting the earlier pay scale is in violation of principles of natural justice. As per the respondents the petitioner was having no right to get his pay protected and this aspect was considered by this Court in earlier petition for writ preferred by the petitioner which came to be rejected on merits. An application preferred to review the order dated 28.1.1997 also stood rejected on 11.11.1997 and an special appeal filed by the 3 petitioner to challenge the order dated 28.1.1997 was also dismissed by Division Bench of this Court on 3.7.1998. Heard counsel for the parties. From perusal of the order passed by the Division Bench of this Court in DBCivil Special Appeal referred above bearing No.3/98 it appears that the Division Bench permitted the petitioner to withdraw the appeal as well as the writ petition bearing No.2291/1987, and as such, merely on basis of the order dated 28.1.1997 the respondents could not have withdrawn the order protecting petitioner's pay. However, it is emphasized on behalf of the respondents that though the petitioner withdrew the earlier petition for writ but for the reasons given in the judgment dated 28.1.1997, no right was available to him to get the pay protected. It is the position admitted that during pendency of SBCivil Writ Petition No.2291/1987 the respondents at their own granted whatever relief claimed by the petitioner in the petition for writ aforesaid. It is not in dispute that before passing the order impugned dated 8.10.1997 withdrawing pay fixation benefits given to the petitioner no notice was given to him, and as such, in view of the judgment of Hon'ble Supreme Court in Divisional Superintendent, Eastern Railway, Dinapur and Others 4 Vs. L.N. Kashri and Ors. reported in AIR 1974 SC 1889 the order impugned is bad. In the case of Divisional Superintendent, Eastern Railway, Dinapur & Ors. (supra) the Hon'ble Supreme Court held as follows: “5. The appellants contended that because of some mistake the respondents had been put in the grade of Rs.110-180 and this mistake was rectified. 6. The respondents were confirmed in the scale of Rs.110-180. The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard.” In view of the legal position settled by Hon'ble Supreme Court as above this petition for writ deserves acceptance. Accordingly, the same is allowed. The order impugned dated 8.10.1997 is quashed. No order as to costs. (GOVIND MATHUR), J. Jgoyal '