IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 16609 of 2008 Decided on : 8.12.2010 ___________________________________________________________ Ishwar Dass and another …Petitioners. Versus Dr.Y.S.Parmar University ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mrs. Ranjana Parmar, Advocate. For Respondent : Mr. B.S.Attri, Advocate. Kuldip Singh, Judge ( Oral) The petitioners have prayed for quashing, setting aside orders dated 9.10.2002, Annexures A-5 and A-6 with further prayer that respondents may be directed that the orders which have been superseded by Annexures A-5 and A-6 should be restored and respondents may further be directed to pay the salary to the petitioners as per earlier pay fixation. 2. The case of the petitioners is that petitioner No.1 was appointed as Security Guard in the respondent-University vide office order dated 17.6.1992. He joined his duty in the Estate Office of respondent. The petitioner No.1 had served Indian Army from 25.1.1963 to 15.9.1978. He was given benefit of army service for pay fixation under Demobilised 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Armed Forces Personnel (Reservation of Vacancies in the H.P.State Non- Technical Services) Rules, 1972 (for short ‘ Rules’). 3. The petitioner No. 2 joined the respondent –University as Security Guard on 2.9.1992 and he was also given benefit of army service towards pay fixation. The age of retirement of Security Guards in respondent-University is 60 years. 4. It is also the case of the petitioners that after pay fixation of the petitioners an audit objection was raised. On 1.9.1994 it was objected that the petitioner No.1 was appointed in the pay scale of ` 750 – 1350 w.e.f. 18.6.1992 but he has been given the benefit of increments in the pay scale of ` 350 – 430 which is not correct. The pay of the petitioner No.1 has to be fixed in pursuant to letter dated 9.7.1993, Annexure A-3. Thereupon the pay of petitioner No.1 was re-fixed in the pay scale of ` 750 – 1350 by giving him benefit of 15 years service in army vide Annexure A- 4 dated 20.12.1994. The pay of petitioner No.2 was also fixed. 5. The petitioners were drawing their pay in accordance with their earlier pay fixation. However, on 9.10.2002 the respondent had withdrawn the benefit of increments given to the petitioners in view of their being ex-servicemen in a wrong, illegal and arbitrary manner. The pay of the petitioner No.1 was re-fixed vide office order dated 9.10.2002 Annexure A-5. Similarly, the pay of petitioner No.2 was re-fixed vide office order dated 9.10.2002 Annexure A-6. 6. The re-fixation of pay of petitioners vide impugned orders would reveal that petitioners who were fixed at ` 1090/- on 1.6.1994 have been brought down to ` 830/- as on 1.6.1994. The respondent-University has also ordered recovery of the excess payment from the pay of the 3 petitioners from October, 2002 payable in November, 2002. The impugned action of the respondent reducing the pay of the petitioners has been challenged by the petitioners on the ground that re-fixation of the pay of the petitioners vide impugned orders is wrong, illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution. 7. It has been submitted that the pay of the petitioners was fixed earlier and they were drawing benefit w.e.f. 18.6.1992 and 2.9.1992 respectively. The reduction in pay of the petitioners by way of re-fixation is penal. The impugned action has civil consequences but respondent has not adhered the principle of natural justice before reducing the pay of the petitioners at the time of re-fixation of their pay. The respondent has given similar benefit to other categories in the respondent-University but only the benefit given to the petitioners has been withdrawn. 8. The respondent has contested the petition by filing reply. It has been submitted that pay of the petitioners was re-fixed in view of the audit memo No. 15 dated 15.3.2001 Annexure R-1. The petitioners were not entitled to the benefit of military service as the benefit of military service is to be given if the employee is recruited against the reserved post meant for ex-serviceman. There were only two posts of Security Guards in the cadre and no post was reserved for ex-serviceman. The posts against which the petitioners were appointed were considered unreserved as per Rules. The petitioners were not appointed against reserved quota of ex-servicemen, therefore, they were not entitled to count military service for pay fixation. The respondents have defended their action of re-fixation of pay of petitioners vide Annexures A-5 and A-6. 4 9. I have heard the learned counsel for the parties. The Annexure A-4 dated 20.12.1994 reveals that the pay of petitioner No.1 has been fixed at ` 1050/- as on 18.6.1992 and ` 1090 + ` 30/- AP as on 1.6.1994. But vide office order dated 9.10.2002 Annexure A-5 the pay of the petitioner No.1 has been fixed at ` 770/- as on 18.8.1992 and ` 830/- + 40/-SA (w.e.f. 1.2.1995) as on 1.6.1994 and ultimately the pay of petitioner No.1 has been fixed at ` 3660/- + 120 SA (if otherwise admissible) as on 1.6.2003. Similarly vide office order dated 9.10.2002 the pay of the petitioner No.2 has been fixed. 10. The learned counsel for the petitioners has submitted that petitioners were getting benefit of earlier pay fixation. The pay of the petitioners has been reduced vide impugned Annexures without hearing the petitioners. In the impugned Annexures, it has been ordered that recovery of the excess payment will be recovered in monthly equal instalments from the salary of the petitioners w.e.f. October 2002 paid in November, 2002. The impugned action of respondents has visited them with civil consequences and, therefore, minimum required from the respondent was to hear the petitioners before re-fixing their pay. The learned counsel for respondent has defended the action of respondent and has prayed for dismissal of petition. 11. In Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475, it has been 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 5 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.” 12. It is not the case of the respondent-University that by re- fixation of the pay of the petitioners vide impugned Annexures, the pay of the petitioners has not been reduced nor it is the case of the respondents that petitioners were heard before their pay was re-fixed. The respondent earlier fixed the pay of petitioners of its own. There is no allegation that petitioners obtained earlier pay fixation by fraud or misrepresentation. The petitioners were getting the benefit of earlier pay fixation since long. The impugned action of the respondent has visited the petitioners with civil consequences. Therefore, it was incumbent upon the respondent to hear the petitioners before taking any decision adversely affecting the petitioners. The respondent has re-fixed the pay of the petitioners vide Annexures A-5 and A-6 without following the principles of natural justice. Therefore, on this ground alone the impugned Annexures are not sustainable. 13. No other point was urged. 6 14. The result of the above discussion, the petition is allowed, office order dated 9.10.2002 Annexure A-5 and office order dated 9.10.2002 Annexure A-6 are quashed with liberty to the respondents to proceed with the matter in accordance with law after hearing the petitioners No costs. ( Kuldip Singh ), December 8, 2010, Judge. (GR)