IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 9020 of 2008 Decided on : 01.12.2010 ___________________________________________________________ Parkash Chand and another …Petitioners. Versus Financial Commissioner-cum-Secretary (Finance) & Ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mr. Tek Chand Sharma, Advocate. For Respondents : Ms. Ruma Kaushik, Addl. A.G. Kuldip Singh, Judge ( Oral) The petitioners have prayed for quashing of office orders dated 27.5.2002 and 22.8.2001 with a further direction to the respondents to allow the petitioners to continue with their earlier promotion and pay fixation issued on 11.12.2000 and 12.12.2000. It has also been prayed that petitioners may be allowed the protection of their pay under F.R. 27 or as a measure personal to them as has been done in several similar cases. The further case of the petitioners is that they have assailed the order dated 27.5.2002 and order dated 22.8.2001 whereby the promotion of the petitioners as Junior Assistants in the pay scale of ` 4400 – 7000 ordered earlier vide office order dated 30.9.2000 has been wrongly withdrawn/cancelled by ordering placement under 50 : 50 percent by 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondent No.3 as Junior Assistants in the pay scale of ` 4400 – 7000 which has reduced the pay of the petitioners by one increment all of a sudden without assigning any reason and without following principle of natural justice and calling for options of the petitioners. 2. The petition has been contested by the respondents by filing reply in which it has been stated that the petitioners were promoted to the post of Junior Assistants vide Engineer-in-Chief, HPPWD, Shimla office order dated 30.9.2000 in the pay scale of ` 4400 – 7000 w.e.f. 1.4.1998 and 6.11.1999 and consequently their pay was fixed at ` 4850/- and ` 5000/- per month. In the meantime the promotion orders of the Junior Assistants were withdrawn and only placement in the pay scale of ` 4400 – 7000 was allowed vide finance Department to the Govt. of H.P. Notification dated 31.5.2001 and, therefore, the pay of the petitioners as Junior Assistants has been fixed at ` 4550/- and ` 4700/- per month as on 1.4.1998 and 6.11.1999 respectively vide office order dated 22.8.2001. At the time of pay fixation the petitioners were drawing ` 5320/- and ` 5160 per month respectively as on 31.5.2001. The Government issued notification dated 31.5.2001. The government vide notification dated 3.11.2001 has waived off the recoveries upto 30.5.2001. The promotion orders of the petitioners have been withdrawn in view of provision of Article 309 of the Constitution of India and only the placements have been allowed. The respondents have denied the other contentions of the petitioners and prayed for dismissal of the writ petition. 3 3. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioners that the impugned action of the respondents has adversely affected the petitioners inasmuch as the petitioners were earlier promoted as Junior Assistants and now they have been given the placement as Junior Assistants instead of promotion as Junior Assistant. The consequence of impugned action is that the pay of the petitioners has been reduced and petitioners will lose one increment. The impugned action of the respondents has civil consequences. The petitioners were not heard nor were they given any option before the impugned action was taken by the respondents. It has been submitted that due to impugned action the pay of the petitioners has been reduced from back date and no doubt the Government have waived off recoveries to some extent but still the recoveries have not been waived off altogether. The learned counsel for the petitioners has relied Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475 and Division Bench judgment of this Court in CWP(T) No. 9003 of 2008 dated 5.1.2010 titled Narain Singh and others vs. Commissioner-cum- Secretary(Revenue) and anr. He has submitted that the respondents have given the earlier benefit to the petitioners by promoting them as Junior Assistants. It is not a case where the petitioners mis-represented or played fraud for obtaining undue benefit from the respondents. The petitioners were given benefit by the respondents in their own wisdom. A right had accrued in favour of the petitioners due to earlier benefit given by the respondents. Such right could not have been taken away by the respondents without following the principles of natural justice and for the 4 same reasons no recoveries can be made from the petitioners as a consequence of impugned action of the respondents. 4. In Syed Abdul Qadir (supra) the Supreme Court has held as follows:- “Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants- teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 5. The learned counsel for the petitioners has submitted that the Division Bench judgment in Narain Singh’s (supra) is more nearer to the facts of the present case. The Division Bench in that case has held as follows:- “Petitioner was promoted w.e.f.1.1.1996 pursuant to orders dated 1st December, 1998. The general revision of pay scale was notified and issued on 20th January, 1998. The pay of the petitioner was enhanced. However, vide order dated 5 31st December, 2001 the promotion of the petitioner as Junior Assistant in the pay scale of ` 4400 – 7000 has been withdrawn. This order has been passed admittedly without hearing the petitioner. The petitioner has been visited with civil and evil consequences. It is settled law by now that any order which has civil and evil consequences must be passed in accordance with the principles of natural justice. Accordingly, Annexure A-1 dated 31st December, 2001 is quashed and set-aside. However, liberty is reserved to the respondents to proceed with the matter in accordance with law. The petition stands disposed of.” In the present case also the impugned action has been taken without hearing the petitioners. Therefore, in view of the judgment dated 5.1.2010 in Narain Singh’s (supra), the impugned action of the respondents is not sustainable. 6. No other point was urged. 7. The result of the above discussion, the petition is allowed, Annexure A-1 dated 27.5.2002 and Annexure A-2 dated 22.8.2001 so far petitioners are concerned are quashed and set-aside. However, liberty is reserved to the respondents to proceed with the matter in accordance with law after hearing the petitioners either collectively or through their representatives. No costs. ( Kuldip Singh ), December 1, 2010, Judge. (GR)