SBCWP NO.6838/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6838/1997. Chandra Bhan Pandey Versus State of Rajasthan & Anr. Date of Order:- April 1, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri A.K. Bhargava for the petitioner. Shri Mahendra Kumar Gupta for the respondents. ***** BY THE COURT:- This writ petition has been filed by the petitioner challenging the order dated 26/11/1997 (Ann.7) by which, earlier order dated 18/8/1994 stepping up of pay of the petitioner at the level of the pay received by his junior Shri Amar Singh was withdrawn. In the order dated 18/8/1994, respondents directed that petitioner, who is senior to Amar Singh, would receive the salary at the basic of 1420 as on 19/8/1992, which was being paid to his junior Shri Amar Singh. Next increment was due to the petitioner on 24/3/1995. He was getting his salary at Rs.1420/- in March 1993 and therefore in March 1995 he would get salary of Rs.1565/-. This order was withdrawn by the respondents vide impugned order dated 26/11/1997. Hence, this writ petition. 2) Shri A.K. Bhargava, learned counsel for the petitioner has argued that benefit of stepping up of SBCWP NO.6838/97. 2 pay was given to the petitioner in terms of Rule 32 of the Rajasthan Service Rules, 1951 and decision of the Government of Rajasthan therein. The anomaly has arisen on account of the fact that junior of the petitioner started getting more pay than him and that the premise on which respondents have withdrawn the benefit that the said junior was graduate and petitioner was not even a graduate when appointed, could not be relevant because petitioner stood promoted on the post of Assistant Manager in 1982 whereas Amar Singh was promoted somewhat in the year 1992. Learned counsel cited the judgment of co- ordinate bench of this Court in Rohitash Kumar Vs. Rajasthan State Cooperative Bank Ltd. (SBCWP No.7931/92) and other petitioners decided vide judgment dated 22/11/1995 wherein similar writ petitions were allowed. Even otherwise, learned counsel for petitioner submitted that this court had stayed the effect and operation of the impugned order Ann.7 and by virtue thereof, petitioner has throughout received the benefit of pay on the strength of Ann.6. Petitioner was 45 years old when the writ petition was filed in the year 1997 and the age of retirement in the service is 58 years and therefore he would have by now attained that age, he may have retired or may be on the verge of retirement. In any event, benefit which petitioner has throughout received, may not be withdrawn because original order passed by the respondents was SBCWP NO.6838/97. 3 based on correct appreciation of law and the rules and not because of any misrepresentation or fraud on the part of the petitioner. In such circumstances, no recovery can be made by the respondents. Learned counsel in support of his argument has relied on the judgment of Supreme Court in Shyam Babu Verma and others Vs. Union of India and others : (1994) 2 SCC 521. 3) Shri Mahendra Kumar Gupta, learned counsel for the respondents has opposed the writ petition and submitted that Amar Singh started getting the higher pay than petitioner because he possessed the higher qualification and was therefore granted advance grade increment which the petitioner was not granted because he was not graduate at the time of initial appointment as Clerk. Both of them were appointed as Clerk on 13/2/1974. Although it is a fact that respondents vide order dated 18/8/1994 granted stepping up of pay of the petitioner at par with his junior Amar Singh but that was done by mistake and order to rectify the mistake, subsequent order was passed. Since the said order was passed with a view to correcting the mistake, neither any notice nor any opportunity of hearing was required to be given. Learned counsel submitted that as per the decision of the Government, below Rule 32 of RSR, if junior draws higher pay by virtue of getting advance increments on the basis of more qualification, such rule should not be invoked to SBCWP NO.6838/97. 4 step up pay of his senior. 4) Having heard learned counsel for parties and perused the impugned-order on record, I find that although it may be a fact that respondents granted higher pay to the junior of petitioner Shri Amar Singh when he was initially appointed as a Clerk on 13/2/1974 which, incidentally was the date of appointment of the petitioner also but at the same time it is equally true fact that petitioner was appointed as Assistant Manager and almost a decade has been passed after the order dated 10/9/1982. As against this, Amar Singh was promoted on the post of Assistant Manager on 19/8/1992. Therefore, Amar Singh was junior to the petitioner not only in the cadre of Clerk but also continued to be same for many years when he was promoted to the post of Assistant Manager. Order passed by the respondents on 18/8/1994 was consciously passed after due application of mind in accordance with the provisions of Rule 32 of the RSR. Such an order cannot be accepted as an order passed by mistake or due to inadvertence because fact that petitioner and Amar Singh were members of the same cadre and Amar Singh was junior to the petitioner was yet being paid higher pay on the premise the order was founded. Moreover, in passing the impugned order dated 26/11/1997, respondents have not provided any opportunity of hearing to the petitioner and such an order, causing pecuniary loss to the petitioner, SBCWP NO.6838/97. 5 could not have been passed without compliance of the principles of natural justice. In any case, petitioner who is now near to his retirement or may have retired, has received the benefit of order dated 18/8/1994 (Ann.6) on account of the interim- order passed by this Court. There is no reason why he should be deprived of all these benefits. 5) In the result, writ petition is allowed. Impugned-order dated 18/8/1994 (Ann.6) is quashed and set-aside. Petitioner is held entitled to retain/get all consequential benefits. (MOHAMMAD RAFIQ), J. anil