1 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. Date : 4.3.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.RR Vyas, for the petitioner. Mr.RK Soni, for the respondents. - - - - - Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 2.2.2002 (Annex.5) and because of recovery effected from the petitioner in pursuance to the said order dated 2.2.2002, in support of which the petitioner has placed on record Annex.6 whereby his salary is refixed. Brief facts of the case are that the petitioner was appointed as Safai Karamchari as back as on 1.12.1964 in the office of Nagar Palika, Salumber. He was confirmed on this post on 30.12.1965. The petitioner was then promoted on the post of Naka-Guard on 19.4.1977 and according 2 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. to the petitioner, his name finds place in the seniority list published on 21.1.1993. The petitioner has placed on record abstract copy of seniority list as Annex.1. These facts mentioned in para no.2 have not been denied by the respondents in their reply specifically or even by implication. The petitioner was then promoted on the post of Sub-Nakedar on 1.10.1989 and his promotion was approved by the Departmental Promotion Committee and the petitioner has placed on record copy of resolution dated 12.7.1989 to 13.9.1989 as Annex.2 and the petitioner was promoted to the post of Nakedar on 26.9.1989 for which necessary order was issued, copy of which is placed on record as Annex.3. According to the petitioner, a revised pay scale was given to the petitioner with effect from 1.9.1988 and that was 190/910-1520 and the petitioner was fixed on the basic pay of Rs.5300 on 1.9.1997. Substantially these facts are not in dispute and all of sudden Annex.5 dated 2.2.2002 was issued by the respondent. This Annex.5 appears to be certificate of last pay drawn by the petitioner which appears to have been issued because of the reason that the petitioner was posted as Sub-Nakedar in Municipal Council, Udaipur due to his absorption on the post 3 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. of Fireman. In this last pay certificate in column no.4, it has been mentioned that the petitioner's pay fixation on the post of Sub-Nakedar was wrongly fixed and, therefore, Rs.20,183/- which the petitioner has drawn in excess may be deducted from his salary at the rate of Rs.1000/- per month. In consequence thereof, the entire amount of Rs.20,183/- has been deducted from the salary of the petitioner. Thereafter, the petitioner has preferred this writ petition to challenged Annex.5 dated 2.2.2002. Learned counsel for the petitioner vehemently submitted that the petitioner was appointed after due selection and continued in service and he was found suitable for promotion by the Promotion Committee and he was promoted and was given posting of promotional post. The petitioner never was given any notice that he has been wrongly fixed in the pay scale. The petitioner was never served with any order of refixation of him in any particular pay scale and straightaway while issuing the last pay certificate, a note has been appended that Rs.20,183/- has been paid in excess to the petitioner than the amount to which he was entitled. In view of the above, the endorsement 4 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. made in Annex.5 at No.4 is absolutely illegal and has been recorded without there being any order of any competent authority. It is also submitted that even till today, the respondents could not show any order by which the petitioner's salary has been refixed. Learned counsel for the respondents submitted that the petitioner himself gave an undertaking under Rules 9 and 10 of the Rajasthan Civil Services (Refixation of Salary) Rules, 1998 that in case, if he will be fixed in wrong pay scale, then he shall be liable to repay the amount which he has received in excess than to his entitlement. I considered the submissions of learned counsel for the parties and perused the facts of the case. As already stated, the facts are not in dispute. The petitioner was duly appointed after his selection and thereafter, he was given promotion. The petitioner's case was duly considered by the Promotion Committee and necessary orders were issued which have already been referred above and particularly, the order 5 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. dated 18.10.2000 (Annex.4) which shows that the petitioner was duly promoted. Annex.5 dated 2.2.2002 is only the last pay certificate and not any order holding that the petitioner has been wrongly fixed in any particular pay scale. There is no reference of any order in Annex.5 that by that order the petitioner has been held to be fixed in wrong pay scale. Admittedly, no notice was given to the petitioner before mentioning this fact as note no.4 in Annex.5 dated 2.2.2002 that the petitioner was given any opportunity of hearing by the Executive Officer of the Municipal Board, Salumbar. The undertaking given by the petitioner, copy of which has been placed on record along with the reply as Annex.R/1, is of no help to the respondents as by this, the petitioner may have given undertaking that if he will be fixed in wrong pay scale, then he will reimburse the amount which he may receive in excess of his entitlement. Here in this case, the respondents in reply failed to show that the petitioner was wrongly fixed at any point of time in any pay scale apart from the fact that the order dated 2.2.2002 is virtually no order and is only a certificate of last pay drawn by the petitioner. On the basis of the certificate of last pay drawn 6 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. by the petitioner, no recovery can be effected and the recovery effected against the petitioner is absolutely illegal. It is also contended by learned counsel for the respondents that the petitioner has challenged the action of the respondents after entire amount of Rs.20,183/- has already been recovered from the petitioner but I do not find that this may disentitle the petitioner from invoking equitable jurisdiction of this Court when the petitioner is of the caste of Harijan and there is no order by which any deduction could have been made from his salary and as held, the petitioner wrongly understood the last pay certificate dated 2.2.2002 as any order for deduction of the salary passed by any competent authority and in fact, mentioning of Note-4 in Annex.5 that Rs.1,000/- be deducted from the petitioner's salary is wholly without jurisdiction. In view of the above, this writ petition, is allowed and it is held that the recovery effected from the petitioner of Rs.20,183/- was illegal, the respondents are directed to pay the above amount to the petitioner with interest at the rate 7 S.B. Civil Writ Petition No.3158/2006 Mangi Lal. vs. Nagar Palika, Salumbar & Anr. of 6% p.a. within a period of two months from today and the petitioner be paid salary which he was drawing before the order dated 2.2.2002 (Annex.5). (PRAKASH TATIA), J. S.Phophaliya