1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Municipal Council, Hanumangarh Vs. Raja Ram & Anr. D.B. CIVIL SPECIAL APPEAL (W) NO.1213/1997 against the judgment dated 10.7.1997 passed in S.B. Civil Writ Petition No.543/94. Date : 24.8.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. J.M. Bhandari for the appellant. None present for the respondents. ______ Heard learned counsel for the appellant. None appeared for the respondents. This appeal is directed against the judgment of learned Single Judge dated 10.7.1997 allowing the writ petition filed by the respondent-petitioner. As a result of the order under appeal, the order Annex.4 dated 23.11.1993 was quashed by which the petitioner's 2 fixation was made after abut 15 years of service in the lower pay scale No.6 then the pay scale No.5. The one in which petitioner has been appointed and fixed originally without notice to him and a recovery was ordered to be effected from his salary. The petitioner was appointed by order dated 24.6.1978 as a Mistry (Mason) on 3 months probation in the pay scale of Rs.355-2570 which was stated to be pay scale No.7. When in 1983, the pay scales were revised, the petitioner was again fixed in the corresponding revised pay scale No.7. When the revised pay scale 1987 came into force w.e.f. 1.9.1986, no revision of the petitioner's pay scale was made. In these circumstances, the petitioner made a representation to the respondents to fix his pay in the revised pay scale of 1987 in 1992. This prayer was responded by the impugned order saying that he has been wrongly granted the pay scale No.7 whereas he ought to have been fixed in the 3 pay scale No.6 and a recovery of Rs.39,095/- was ordered to be made and he was ordered to be fixed in the lower pay scale corresponding to the lower pay scale to which he was found to be entitled to and consequential order of recovery was issued to the petitioner vide Annex.5 dated 23.11.1993. These two orders have been challenged by the petitioner by way of S.B. Civil Writ Petition No.543/1994 out of which this appeal has arisen. The learned Single Judge has quashed the order Annex.4 by the judgment under appeal by holding that there is no specific mistake pointed out in the original order of fixing the pay of the petitioner in pay scale No.7 and mistake even, if any, was committed by the respondents without any misrepresentation from the petitioner. Hence, no recovery can be ordered against him. The case of the learned counsel for the appellant has been in the reply as well as in appeal was 4 in consonance with his order that the petitioner was liable to be fixed in the pay scale No.6 initially was Rs.295-500 instead of scale No.7, Rs.355-570 and recovery is consequence to the correction of the mistake. The specific ground has been taken in the petition that the pay scale was rightly fixed as the petitioner was appointed as Mistri (Mason) and not as Mason. It was also clearly stated that the impugned order has been passed without notice or without giving any opportunity of hearing to him which fact has not been denied by the respondent in the reply. What has been stated in the reply is that when the petitioner asked for fixation of his pay in the revised pay scale of 1987 according to the corresponding revised pay the matter was examined by the Accounts Department and it was found that by mistake the original pay was allowed in higher pay scale No.7 to which he was not entitled to but he was entitled to only scale No.6. 5 We are of the opinion that this petition must fail on the ground that the impugned orders Annex.4 and 5 have been passed after 15 years continuously allowing the petitioner the emoluments of the post in pay scale stated in the order of appointment lowering the pay scale of petitioner and reducing him in the lower pay scale without notice to the petitioner effecting his rights adversely. The order even does not disclose what was the mistake committed by the appellant-non- petitioner in allowing the petitioner the higher pay scale. In reply also, the appellant has merely stated that the petitioner was appointed as Mistry (Mason) which pay scale was Scale No.6 and not scale No.7. However, no material to that effect has been placed on record nor the same was referred to during the arguments. We find from the schedule of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 that the post of 'Mistry' has been included in the subordinate service under the Public Works Department. The post of Mistry has also been included under Water 6 Works as 'Mistry', Fitter or Lineman, whose qualification is ITI in trade and matriculation examination with 2 years experience of trade whereas the qualification for 'Mistry' under Public Works Department is that he should have 5 years experience of masonry work or surveyor diploma from any recognised institution. Apparently, while the petitioner was appointed as 'Mistry' in the bracket trade “mason” was stated to distinguish his appointment from that of Mistry in water works. The expression used in appointment letter was referable to appointment of Mistry in masonry line under Public Works Department and it was not appointment as Mistry under Water Works Department. This clearly indicates that the petitioner has rightly been fixed in the pay scale as Mistry in subordinate service and he was not liable to be fixed in lower pay scale as Mason in class IV service. In that view of the matter, we do not find any merit in this appeal. The same is hereby dismissed. The order dated 23.11.1993 (Annex.4) stand quashed and the appellant shall allow the petitioner's fixation in the revised pay scale from time to time in corresponding pay 7 scale No.7 in which he was originally fixed with all consequential benefits. No costs. [ SANGEET LODHA ], J. [ RAJESH BALIA ], J. babulal/