SCA/8616/1992 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8616 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RN GAJJAR & 4 - Petitioner(s) Versus DIRECTOR OF HIGHER EDUCATION & 2 - Respondent(s) ========================================================= Appearance : MR BS SUPEHIA for MR JIVANLAL M PATEL for Petitioner(s) : 1 - 5. MS ASMITA PATEL AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, MR HJ NANAVATI for MRS DT SHAH for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 27/03/2008 ORAL JUDGMENT 1) This petition under Article 226 of the Constitution of India is filed by the petitioners challenging the action of respondent SCA/8616/1992 2/10 JUDGMENT No.3 by which salaries of the petitioners are re-fixed and they are reverted to the lower post along with re-fixation and recovery of the amount in excess paid to the petitioners was passed. 2) It is to be noted that earlier petition filed by the petitioners came to be allowed by the learned Single Judge vide order dated 16.12.2003. However, vide order dated 30.11.2004 passed by the learned Division Bench of this Court, this matter was remitted to the learned Single Judge for taking fresh decision in accordance with law. Thus, this matter is placed before this court. 3) All the five petitioners were initially appointed as Assistant Lecturers by respondent No.3 as per prescribed norms of the Government Resolution dated 31.12.1973, which provides the staffing pattern in the Art Diploma Colleges. Appointment of respective Assistant Lecturer / Lecturer / Principal depends on the students admitted in Art Diploma Colleges and according to learned counsel for the petitioners, appointment of the petitioners was in the above prescribed ratio and norms of the Government Resolution. While appointing the petitioners as Assistant Lecturers, the prescribed pay scale of the Assistant Lecturer was Rs.550-900 and pay scale of Lecturer was Rs.650-1200 which came to be revised from time to time. That all the SCA/8616/1992 3/10 JUDGMENT petitioners initially were appointed as Assistant Lecturers, the particulars which are as under :- Name of petitioner Date of appointment Petitioner No.1-R.N.Gajjar 10.09.1981 Petitioner No.2-D.M.Patel 16.08.1982 Petitioner No.3-M.S.Adevadia 05.09.1983 Petitioner No.4-J.P.Vaishnani 16.07.1984 Petitioner No.5-B.M.Gamit 27.08.1984 4) The appointment letters of the petitioners reveal that all the petitioners were appointed by the Secretary of the Trust of respondent No.3-College on probation basis and as per the norms prescribed by the Government Resolution. One of the conditions mentioned in the appointment letters clearly imposes a condition that the appointments are on probation. 5) It appears from the record that when the Board of Trustees of the respondent No.3 realized that the petitioners fulfill the criteria for being appointed as Lecturers, by passing a resolution No.10 dated 1.7.1986, the Board of Trustees promoted all the petitioners with retrospective effect on the posts of Lecturer. It is to be noted that the above promotion to the post of Lecturer with retrospective effect was also on probation. It is further the case of the petitioners that the above resolutions and SCA/8616/1992 4/10 JUDGMENT retrospective promotion of the petitioners came to be approved by the Commissioner, Higher Education, vide letter dated 20.6.1991 addressed to the District Education Officer, Surat, and thereafter, the petitioners were given higher pay scale. 6) Since various anomalies came to be noticed and requisite pay scales were not recommended in the service book, vide order dated 17.11.1992, the respondent No.1 directed the respondent No.3 to remove the anomalies and determine the pay scale of the petitioners as per the rules and re-fix the seniority of the petitioners by considering the date of appointment and complete service proof of all the petitioners. Pursuant to the above order and directions of respondent No.1, respondent No.3 passed an order dated 27.11.1992 by which the petitioners were reverted to the post of Assistant Lecturer and their pay scale was re-fixed on the post of Assistant Lecturer and ordered to recover the difference of pay scales, which is the subject matter of challenge in this petition. 7) Mr.Supehia, learned counsel for the petitioners, mainly contended that reversion of the petitioners from the post of Lecturer to Assistant Lecturer, re-fixation of pay scale and recovery of difference of pay scales, are illegal inasmuch as no show cause notice or at least opportunity of hearing is given to the SCA/8616/1992 5/10 JUDGMENT petitioners before passing the impugned order. Therefore, the power exercised by the respondent No.3 at the behest of respondent No.1 is unjust, unreasonable, arbitrary, illegal, violative of principles of natural justice. 8) Mr.Supehia, learned counsel for the petitioners, submits that since the set up of staff was in accordance with the Government Resolution dated 31.12.1973 and pursuant to the resolution No.10 passed by the Trustee of the College, the Commissioner, Higher Education had given approval and ultimately vide communication dated 17.11.1992 directed the respondent No.3 to re- fix pay scales and to make necessary entries in the service books of the petitioners, which is detrimental to their seniority, needs at least an opportunity of hearing to the petitioners or they should have been issued a show cause notice calling for an explanation from the petitioners. Admittedly, in the present case, that exercise is not undertaken, therefore also, the impugned order deserves to be quashed and set aside as the same is violative of principles of natural justice. 9) Learned counsel for the petitioner further contended that when the petitioners have worked on the post of Lecturer and rendered their services without any grievance from respondent No.3, reverting the petitioners, re-fixing their pay scale and initiating recovery of difference SCA/8616/1992 6/10 JUDGMENT of salary paid to the petitioners without affording an opportunity of hearing cannot be sustained in the eye of law and submits that such an action is unreasonable, arbitrary, violative of Articles 14 and 16 of the Constitution of India and deserves to be quashed and set aside. 10)In the overall submissions of Mr.Supehia, the exercise of power by the authority is contrary to law and deserves to be set right by this court in exercise of powers under Article 226 of the Constitution of India. 11)Ms.Asmita Patel, learned AGP, appearing for the respondent No.1, relying on the affidavit in reply filed by the respondent Authority, submitted that the very action of the respondent No.3 of initially appointing the petitioners as Assistant Lecturers was contrary to rules, and even otherwise also, the above appointments were for a fixed period, temporary and on probation. Not only that but no provision with regard to grant of promotion exists from the post of Assistant Lecturer to Lecturer, still resolution No.10 dated 1.7.1986 was passed giving retrospective effect. It is submitted that the respondent No.3 receives grant from the State Government and any corrective measure taken by respondent No.1 in its administrative and supervisory capacity, directing the respondent No.3 to correct such mistake, cannot be said to SCA/8616/1992 7/10 JUDGMENT be in any manner unreasonable, arbitrary, discriminatory exercise of power and violative of Articles 14 and 16 of the Constitution of India. Learned AGP further submits that by communication dated 20.6.1991 addressed to the District Education Officer the respondent No.1 has conveyed correctness of the staffing pattern and not with regard to the resolution for appointing the petitioners on the post of Lecturer. Learned AGP further submits that on the contrary vide letter dated 17.11.1992 the Office of the Commissioner of Higher Education has disapproved the action of the respondent No.3 of promoting the petitioners, therefore, recovery of the excess amount paid towards salary is justified in view of the above facts. 12)Mr.H.J.Nanavati, learned counsel for the respondent No.3, submits that the impugned order passed by the respondent No.3 is consequential action taken pursuant to the order passed by the respondent No.1. Mr.Nanavati further submits that the respondent No.3 receives grant from the State and any corrective measure taken by the respondent No.1 in its administrative and supervisory capacity directing the respondent No.3 to correct such mistake, cannot be said to be in any manner unreasonable, arbitrary, discriminatory exercise of power and violative of Articles 14 and 16 of the Constitution of India. SCA/8616/1992 8/10 JUDGMENT 13)Having heard learned counsel for the parties and considering the facts and circumstances of the case, the very action of respondent No.3 of granting retrospective promotion to the petitioners from the post of Assistant Lecturer to Lecturer was de hors statutory provisions and no power whatsoever is vested in respondent No.3 to grant such promotions to the petitioners on the posts of Lecturer. The above facts were examined in light of the decision rendered by the apex court in the case of Ashok Kumar Sonkar v. Union of India reported in 2007(4) SCC 54 that when initial appointment is illegal and contrary to the statutory provisions, principles of natural justice cannot be made applicable. It is also held by the Apex Court in the above decision that there is no straight jacket formula so far as the applicability of principles of natural justice is concerned and the said principles may not be applied in a given case unless prejudice is shown. It is true that while re-fixing the pay scale of the petitioners and placing them in the original post of Assistant Lecturer was done by the respondent Authority to remove the anomalies. At the same time, granting promotional pay scales to the petitioners is contrary to prescribed rules and the promotion itself was not valid, therefore, action taken by the respondent authority cannot be said to be in any manner SCA/8616/1992 9/10 JUDGMENT bad, illegal, unjust, arbitrary, violative of Article 14 of the Constitution of India. 14)The contention of the learned counsel for the petitioners that granting approval to the appointments of the petitioners and pay scales by the Commissioner, Higher Education by way of approval letter dated 20.6.1991 at Page 158 of the compilation is thoroughly misconceived inasmuch as the aforesaid letter sent by the Commissioner, Higher Education to the District Education Officer is with regard to the staffing pattern suggested by respondent No.3 as per the norms prescribed in the Government Resolution and not with regard to the appointments and subsequent retrospective promotions of the petitioners on the posts of Lecturer and pay scale granted to them. Therefore, the petitioners initial appointments were on probation and for a fixed period and even subsequent grant of retrospective promotions were also based on probation, therefore also, the petitioners cannot claim any protection of principle of natural justice and no right of hearing accrues to the petitioners. 15)However, as regards the contention that initiation of recovery of the excess amount of the difference of pay scale paid to the petitioners on the posts on which they have actually worked cannot be permitted to operate and accordingly the same deserves to be quashed SCA/8616/1992 10/10 JUDGMENT and set aside, has some substance and the same can be granted holding the rest of the portion of the impugned orders dated 17.11.1992 at Annexure-K and 27.11.1992 at Annexure-M of re- fixing the pay scales, seniority and appointment of the petitioners on the post of Assistant Lecturers as legal and valid. 16)In view of the above discussion, this Special Civil Application fails and is hereby dismissed. However, it is made clear that the orders dated dated 17.11.1992 at Annexure-K and 27.11.1992 at Annexure-M passed by the respondents qua recovery of the excess amount of the difference of pay scale paid to the petitioners on the posts on which they have actually worked are quashed and set aside and as such there shall be no recovery from the petitioners. The above impugned orders qua refixing seniority and pay scales are held as legal and valid. Rule is discharged. However, there shall be no order as to costs. (ANANT S. DAVE, J.) *pvv