IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12432 of 2007 MANINDRA NATH GUPTA Versus THE B.R.A.BIHAR UNIVERSITY &OR ----------- For the petitioner:- Mr. Raghav Prasad,Advocate 7 31.3.2009 Heard learned Counsels for the petitioner, the State and the respondent, B.R.A. Bihar University. I.A. No.7440 of 2008 has been filed challenging the impugned orders dated 21.5.2008 and 22.5.2008, issued during the pendency of the writ application. Having heard Counsels for the parties, the I.A. application is allowed.. The writ petitioner primarily seeks two reliefs; (a) quashing of the order dated 21.5.2008 reducing the pay scale of the petitioner on the post of Reader and directing recovery of the alleged excess payment made and (b) quashing of the order dated 22.5.2008 withdrawing with immediate effect the benefit of two advance increments granted with effect from 1.1.1996 to teachers appointed having Ph.D. degree prior to 1.1.1996 and ordering recovery of the alleged excess payment. The petitioner was promoted on the post of Reader on 21.12.1985 and retired as such in 2002. The respondent University by order dated 1.4.2006 granted the pay scale of Rs. 14,940/- to Readers of five years experience. The payment was to be made with effect from 1.1.1996. The order refers to the Government Memo No.868 dated 16.5.2005 in support of grant of such benefit read with the letter of the Government of India, - 2 - Ministry of Human Resources Development Department dated 18.10.2002. The situation remained the same when the petitioner retired in the year 2002 as noticed above, from the post of Reader. After his superannuation, it appears that certain audit objections were raised with regard to qualification and eligibility of Readers. In pursuance of such audit objection the University issued the impugned order dated 21.5.2008 referring to certain Government letters of 21.11.2007,28.11.2007 and 31.3.2008, in pursuance of which the Vice Chancellor withdrew the benefit of pay point of Rs.14940/- with immediate effect. Audit objections cannot per se have justification for reduction of salary. It may raise issues for consideration in terms of the statutory provision requiring adjudication, discussion and consideration in the light of the audit objection. Audit objections are not statutory orders to determine the statutory benefits and more so with retrospective effect. An order reducing pay scale is an order having adverse civil consequences. This becomes more susceptible if it is made retrospective after the superannuation of the employee and orders recovery. The scrutiny by the Court shall be stricter. Determination of non-eligibility requires compliance with procedural law and which includes making the delinquent aware of the materials against him because of which the pay scale is sought to be reduced and giving him adequate opportunity to meet the same. It is only after this procedure is complied with and determination done that the - 3 - question of recovery and/or non, would arise. Till the respondents do not comply this procedure, they do not have any authority or jurisdiction to order the recovery. It is apparent from the order dated 1.4.2006 that it refers to the letter of the Government of Bihar and the Ministry of Human Resources Development Department. The impugned order reducing the pay scale dated 21.5.2008 prefers to refer certain other letters of the Government of Bihar issued subsequently but does not disclose or deal with the earlier letters referred to in the order dated 1.4.2006. Till this procedure is followed, the matter remains in the realm of Administrator. It is only after the Administrator takes a decision in accordance with law and passes reasoned order then the issue of judicial review arises. It is virtually as if the respondents do not wish to be asked to take responsibility for their orders and require the Court to accept their ipse dixit. This is not permissible in law. The order dated 21.5.2008 additionally does not contain any reasons why the withdrawal was being effected. Had it been so, there might have been occasion for this Court to consider the matter otherwise. An additional issue would be the extent of the jurisdiction of the respondents to administratively deal with the petitioner after his superannuation. The law stands settled that an order of the respondents shall be tested on the basis of the language used therein and they cannot be permitted to explain the order in the counter affidavit. If the order assigns no reason, the respondents are themselves responsible for the - 4 - order being set aside by this Court. The order dated 22.5.2008 withdrawing the benefit of the increments granted to those holding Ph.D degree suffers from the same vice inasmuch as the respondents are virtually confronting the Court with a fate accompli with no reasons in support of the same. In 2005 (7) SCC 627 the submission that the circumstances pointed out in the counter affidavit should be held to be a substitute for the reasons for which the State arrived at a decision was rejected reiterating its earlier decision in AIR 1952 SC 16 and paragraph 25 quoted below:- 25.In Commr. Of Police V. Gordhandas Bhanji it is stated: (SCR p.140) We are clear that public orders publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the Officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. This has been reiterated in 2005 (12) SCC 508 (Banglore Development Authority n& ors. Vs. R. Hanunaiah and ors.) at paragraph 56. Equally the need to give reasons has been emphasized by the Supreme Court in 2008n (11) SCC 205 holding in paragraph 10 as follows:- 10. In Raj Kishore Jha V. State of Bihar (2003) 11 SCC 519 this Court has held that reason is the heartbeat of every conclusion and without the same, it becomes lifeless. - 5 - Presumably, respondent-State is sanguine in the validity of its own decision unmindful what the law may require when they also, refuse to file counter affidavit . This Court has no option in the circumstances but to set aside the orders dated 21.5.2008 and 22.5.2008 by which the pay scale and increment has been retrospectively reduced and recovery ordered. Any recovery made from the petitioner is directed to be returned forthwith A supplementary counter affidavit has been filed on behalf of the University with regard to the aforesaid impugned orders. Paragraph 4 of the same is relevant. The University accepts no responsibility for the order which has been passed but shifted the burden of the State Government, which refused to file counter affidavit. The writ application stands allowed. (Navin Sinha,J.) A.Kumar