IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6909 of 2004 1. KAPILDEO SINGH, son of late Dasrath Singh, resident of village Kataulimath, P.O. Murgaon, P.S. Ghoshi, District Jehanabad, a retired Technical Supervisor, Rajendra Agricultural University, Bihar, P.O. Pusa, District Samastipur 2. Md. Noor, son of late Md. Yashin, resident of village Rampur Bakhari, P.O. Basantpur Bakhari, P.S. Sakra, District Muzaffarpur, a retired Technical Supervisor, Rajendra Agricultural University, Bihar, P.O. Pusa, District Samastipur ... Petitioners Versus 1. THE RAJENDRA AGRI.UNIVERSITY, Bihar through its Registrar having its headquarters at Pusa, District Samastipur 2. The Vice Chancellor, Rajendra Agricultural University, Bihar, P.O. Pusa, District Samastipur 3. The Director of Administration, Rajendra Agricultural University, Bihar, P.O. Pusa, District Samastipur 4. The Comptroller, Rajendra Agricultural University, Bihar, P.O. Pusa, District Samastipur 5. The Director, Sugarcane Research Institute, Pusa, District Samastipur ... Respondents ----------- 3. 24.11.2010 Having heard Mr. Anand Kumar Ojha, learned counsel for the petitioners and Mr. Devendra Kumar Sinha, learned Senior counsel appearing on behalf of Rajendra Agricultural University in respect of the following relief: “(i) Issuance of a writ of certiorari quashing letter No.2 Estt/Misc/10/95-732/RAU dated 13.5.2003 bearing Memo No. 1465 dated 25.9.2003 thereby and 2 thereunder the original dates of the increments of the petitioners have been changed to 20.10.1991 the date from which the revised pay scale of Rs. 2000-3800 was given effect to vide office order No. 619 dated 29/30.11.1990 (Annexure 3). (ii) Issuance of a writ of mandamus directing the respondents to restore the original dates of increments i.e. 12.12.1990 and 21.3.1991 respectively and accordingly, amend the office order no. 57 bearing Memo No. 288 dated 21.3.2004 (Annexure 8). (iii) Issuance of declaration by holding the letter no. 732 dated 13.5.2003 (Memo No. 1465 dated 25.9.2003) and office order No. 57 bearing Memo No. 288 dated 21.3.2004 ultravires, illegal, and in contravention of rules.” this Court is of the considered opinion that when the petitioners till the date of continuation in active service of the University were given the benefit of pay fixation in terms of the decision as contained in Annexure 3, dated 29.11.1990/ 30.11.1990, by upgrading pay scale of the post of Technical Supervisor from Rs. 1600- 2780 to Rs. 2000-3000 by allowing them to 3 retain the original date of increment, as a result whereof they also got the further benefit in the pay fixation made with effect from 1.1.1996 in the revised pay scale of Rs. 5000-8000, any order or action to their detriment after their retirement from service should have necessarily been taken only after giving a notice and/or opportunity of hearing to them and to that extent the prayer made in this writ application has to be allowed. From the materials on record it is self evident that the petitioner no.1 was appointed on the post of Technical Supervisor on 11.12.1989 and petitioner no.2 was appointed on the said post on 27.2.1990. Both the petitioners in fact at the time of their appointment were placed in the pay scale of Rs. 850-1360 (pre-revised) Rs. 1600-2780 (revised) and had not even earned their first increment (which was due to them only in the month of December, 1990 and March, 1991 respectively) when the Government decision as implemented by the University in its order dated 29.11.1990/ 30.11.1990 enhancing the pay scale of the 4 post of Technical Supervisor to Rs. 2000- 3800 was implemented. Normally the petitioners were required to be given an option in terms of Rule 82 of the Bihar Service Code which reads as follows: “82. The holder of a post, the pay of which is changed, shall be treated as if he was transferred to a new post on the new pay provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time scale. The option once exercised is final.” There is, however, no pleading on either side to suggest that such recourse of Rule 82 was ever taken in the case of the petitioners. In fact once the petitioners were granted their increment on due date in the month of December and March respectively year after year even in the enhanced pay scale of Rs. 2000-3800 or its revised pay scale of Rs. 5000-8000 till their retirement from service, the normal presumption would be that the University had itself not sought for any option from the petitioners in terms 5 of Rule 82. In that view of the matter, if the University ultimately on the report of the Auditors or the District Accounts Officer much after retirement of the petitioners had found that the pay fixation or grant of increment to the petitioners in the period they had continued in service was incorrect, it was incumbent on the part of the University and its officials to at least give them a show cause notice and/or opportunity of hearing as with regard to proposed fixation of their reduced last pay on account of changing their date of increment before taking a decision by way of compliance of the principles of natural justice. There is again no dispute on this issue that no such show cause notice was ever issued to the petitioners who having retired from service on 30.9.1999 and 31.3.1998 respectively in fact were also drawing the benefit of their monthly pension fixed on the basis of last pay drawn by them as per earlier fixation of pay and grant of increment in the pay scale of Rs. 2000-3800 and Rs. 5000-8000. To that extent the 6 grievance of the petitioners seems to be absolutely justified that they were sought to be victimized and penalized by deduction of their monthly pension even without notice and/or affording opportunity of hearing to them. In normal circumstances a pensioner governed by the Bihar Pension Rules cannot be subjected to reduction of his pension without taking recourse as provided under Rule 43(b) of the Bihar Pension Rules which by itself contains enabling provisions for giving notice and/or an opportunity of hearing before any such action is taken thereunder. The situation, however, may not be remain the same where someone’s pay fixation itself has been done contrary to the statutory provisions including one as noticed under Rule 82 of the Bihar Service Code. In that situation, probably the pensioner in absence of any material establishing fraud or misrepresentation of his part may not be put to disadvantage of any recovery of excess amount of salary or pension paid to him but then the issue of his actual future entitlement will always 7 have to be decided as per provisions prescribed under the Pay Fixation Rules. That is how the law has been laid down by the Apex Court in the case of Syed Abdul Quadir Vs. State of Bihar reported in (2009)3 S.C.C. 475 as also this Court in the Full Bench judgment in the case of Ram Binod Singh & ors. vs. The Bihar State Electricity Board & ors., reported in 2007(3) PLJR 398. From the aforementioned admitted facts that the petitioners were not given any notice and/or opportunity of hearing before reduction of their last pay in the pay fixation orders dated 21.3.2004 and 28.7.2006 on the strength of the impugned circular dated 13.5.2003 making it applicable by the Rule of thumb, this Court would have little option but to quash the two fixation orders of the petitioners dated 21.3.2004 and 28.7.2006 as contained in Annexure-8 and R/10, inasmuch as both the pay fixation order dated 21st March, 2004 in the case of petitioner no.2 and 28th July, 2006 in the case of petitioner no.1 respectively have been passed without giving notice and/or affording opportunity of 8 hearing to the petitioners. At the same time this Court is of the considered opinion that the Respondents should be given liberty to pass a fresh pay fixation order in cases of both the petitioners after complying the requirement of principles of natural justice. Since now the petitioners are well aware of all the facts this Court would give them an opportunity of hearing by way of filing their separate compact representation assailing the reasons in the impugned order dated 13.5.2003 and/or to the proposed pay fixation as shown in the office orders dated 21st March, 2004 and 28.7.2006. In such representation it will be also open to them to show the apparent prejudice that they would suffer on account of shifting of their date of increment and for that purpose they may also exercise their option in terms of Rule 82 of the Bihar Service Code if that could protect their last pay on the date of their retirement and/or the amount of pension which they were drawing up to the date of impugned order/ impugned pay fixation order. 9 The Vice Chancellor of the University on receipt of the aforesaid representation of the petitioners will pass a speaking order and while doing so he must keep in mind as there was no misrepresentation and/or fraud on the part of the petitioners in receiving payment of the benefits of pay revision either in the pay scale of Rs. 2000-3800 or Rs. 5000-8000 including retaining of their respective date of their increments of December and March respectively, even if their ultimate entitlement of last pay is sought to be reduced, they will not be subjected to any recovery either on account of excess payment made on the head of salary and/or amount of pension already received by them. It is also made clear that the Vice Chancellor while passing his reasoned order will not be guided by the earlier pay fixation statement/order passed by the University dated 27.3.2004 and 28.7.2006 in the cases of petitioners. It will be, however, open for the University and the Vice Chancellor to make a correct pay fixation of the petitioners strictly in accordance with law 10 and the petitioners’ future entitlement of pensionary benefit shall be governed as per revised pay fixation. As the petitioners are retired University employees, such exercise must be completed within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/