IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 9369 of 2008 Date of Decision : May 26, 2010 Sh. Jagdish Chand Petitioner Versus State of H.P. and others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. P. P. Chauhan, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Senior Additional Advocate General with Mr. P. M. Negi, Deputy Advocate General for the respondents. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs:- “(a) Quash the impugned orders A-4 issued arbitrarily, malafide and illegally by the respondents; (b) Declare the instructions issued on 31.05.2001 not applicable to the applicant; (c) Direct the respondents to continue paying the salary to the applicant in accordance with Annexure A-3 as heithertofore by declaring the same to be as correct and legal; (d) Direct the respondents not to recover the payments made to the applicants in accordance with Annexure A- 4; Whether reports of Local Papers may be allowed to see the judgment? 2 (e) Direct the respondents to produce all the relevant documents alongwith their reply for perusal by this Hon’ble Tribunal; (f) Allow the cost of this O.A.; (g) Pass such other order or directions as deemed fit and proper in favour of the applicant.” 2. Mr. P. P. Chauhan, learned Counsel for the petitioner has made the following submissions. (i) Action of the respondents in issuing office orders dated 12.11.2001 (Annexure A-4) is illegal for the reason that no notice of hearing was issued to the petitioner. Downward fixation of the petitioner’s pay entails civil consequences and as such office orders need to be quashed. (ii) In any event, keeping in view the law laid down by this Court as also the Apex Court in Mahavir Singh versus Union of India and others, 1997 (2) Sim. L.C. 385; Yamuna Shankar Sharma versus State of Rajasthan and others, (2007) 2 SCC 611; Sahib Ram versus State of Haryana, 1995 (1) SCT 668 and State of Orissa versus Adwait Charan Mohanty, 1995(2) SCT 421 no recovery of excess payments made to the petitioner can be recovered. 3. Now the brief facts relevant for deciding the controversy are as under. There is no dispute that petitioner was appointed as a Clerk with the respondent/State. In terms of office order dated 17.7.1999, petitioner was promoted as a Junior Assistant with immediate effect in the pay scale of Rs. 4400 – 7000. This is evident from Annexure A-2. In terms of office order dated 9.5.2001 3 (Annexure A-3) petitioner’s pay was fixed at Rs. 5000/-. While fixing such pay, benefit of annual increment in the lower scale was given to the petitioner. Undisputedly petitioner continued to receive such salary till 12.11.2001. Vide Notification dated 31.5.2001, Rules known as the Himachal Pradesh Civil Services (Revised Pay) (Third Amendment) Rules, 2001 were notified by the respondent/State. The said Rules stipulated that the post of Junior Assistant was to be filled up by “placement to the extent of 100% out of the clerks who had an experience of working as such for a minimum period of five years in the cadre of the department in which he was working at the time of placement”. This notification is not under challenge. Even at the time of hearing the question of non applicability of this notification has not been raised by the learned counsel for the petitioner. 4. Acting on the said notification respondent issued office order dated 12.11.2001 (Annexure A-4). In terms of this order petitioner was placed in the pay scale of Rs. 4400 – 7000 w.e.f. 17.7.1999. Further in terms of order dated 12.11.2001 (Annexure A-4), petitioner’s pay was reduced from Rs. 5,000/- to Rs. 4,700/- per month. The respondent/State also withdrew order dated 17.7.1999 (Annexure A-2) in terms of subsequent order dated 12.11.2001 (Annexure A-4). The effect of withdrawal of the order dated 17.7.1999 entails civil consequences. His status and pay is adversely effected. 4 5. In the return the State has sought to justify its orders passed from time to time. However it could not be pointed out that prior to the issuance of the impugned order any notice/opportunity of hearing was ever afforded to the petitioner. Undoubtedly these orders entail civil consequences. As such on this short ground alone orders dated 12.11.2001 (Annexure A-4) qua the petitioner is quashed. Respondents are at liberty to initiate fresh action. 6. However before taking any action respondents are directed to issue notice to the petitioner. They shall also afford an opportunity of hearing before passing any order. In support of his contention it shall be open for the petitioner to place all material before the authorities. He is at liberty to agitate all issues raised in this petition on merit. 7. In this view of the matter, the second submission is not being adverted to. However before passing final order, respondent authorities shall take into account the ratio of law laid down by the Courts in the judgments noticed hereinabove. At this stage it cannot be directed that no recovery shall ever be affected if ultimately it is found that certain amounts are actually recoverable from the petitioner. 8. Reliance on para 10 of the judgment of Mahavir Singh (supra) is misconceived inasmuch as in that case petitioners were entitled to receive the amounts of payments as a consequence of the action taken by the State having been quashed. Such are not the facts herein. 5 9. Petitioner is at liberty to approach the Court subsequently if need so arises. 10. With the aforesaid observations the present petition is disposed of. (Sanjay Karol), Judge. May 26, 2010 (PK)