WP(C) 9651/2003 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (ORAL) Heard Mr. N. Haque, learned counsel for the petitioner as well as Mr. H. K. Sarma, learned Standing Counsel, Assam State Electricity Board. 2. By means of this writ petition, the petitioner has put in question the A nnexure-F order dated 23.7.2003, by which the earlier decision dated 25.10.2002 (Annexure-C to the writ petition) to re-fix the pay of the petitioner w.e.f. 19. 11.1983 with consequential recovery of the excess amount he had allegedly drawn, was communicated. Admittedly, by the impugned communication dated 25.10.2002 ( Annexure-C to the writ petition) the pay of the petitioner was sought to be re-f ixed after about 20 years with the resultant effect of recovery from his pay. B e it stated here that the petitioner has already retired from service on attaini ng the age of superannuation in the year 2009. 3. The petitioner had joined the services of the respondents on 3.5.1967 as Lower Division Assistant. He was promoted to the post of Accounts Assistant on 19.2.1977. Thereafter, he was further promoted to the post of Assistant Divisio nal Accountant on 29.12.1978. He was promoted to the post of Junior Divisional A ccountant on 26.11.1979. The post was subsequently re-designated as Deputy Accou nts Officer. The petitioner earned his further promotion as Accounts Officer on 15.5.1993. 4. The pay of the petitioner was fixed at par with his junior one Sri Rabi Lal Das, who was promoted to the post of Junior Divisional Accountant later than the petitioner. Be it stated here that said Sri Rabi Lal Das has also retired f rom service on attaining the age of superannuation in the year 2002. 5. The stepping up of pay and/or fixation of pay of the petitioner at par w ith Sri Rabi Lal Das was made in reference to the existing guidelines. As state d in the writ petition, the petitioner and Sri Rabi Lal Das enjoyed the same pay with effect from 19.11.1983. 6. When the impugned decision to re-fix the pay of the petitioner with retr ospective effect was taken, the petitioner had approached this Court by filing W P(C) No.4472/2003. The writ petition was disposed of by order dated 20.6.2003 r emanding the matter back to the authority for a fresh disposal after giving adeq uate opportunity of being heard to the petitioner. After the said order of this Court, the authority in the A.S.E.B. passed the impugned Annexure-F order dated 23.7.2003 upholding its decision for retrospective re-fixation of pay of the pet itioner. Being aggrieved, the petitioner has approached this Court by means of t his writ petition. 7. While entertaining the writ petition by order dated 27.11.2003, the inte rim protection was provided to the petitioner with the direction not to recover the amount from his pay. As stated above, the petitioner is now leading a retir ed life. 8. The respondents have filed their counter affidavit justifying the impugn ed action. It has been stated that although in the higher grades, Sri Rabi Lal D as was appointed at a later point of time than the petitioner, but he having ent ered into A.S.E.B’s service earlier than the petitioner, there is no question of stepping up of pay of the petitioner in reference to said Sri Rabi Lal Das. The respondents have also stated that the stepping up of pay can be provided to a senior in reference to a junior, if both the incumbents are in the same cadre. T hus, the respondents have justified their action on the ground that the petition er being not in comparable grade with that of Sri Rabi Lal Das, the very fixatio n of his pay way-back in 1982 was irregular. 9. Admittedly, while taking the impugned decision dated 25.10.2002 (Annexur e-C to the writ petition), the petitioner was not put to any kind of notice and yet, his pay was sought to be revised to his disadvantage w.e.f. 19.11.1983. Th us, the action was taken after about 19 years of the alleged irregularity. Pursu ant to the order of this Court dated 20.6.2003 passed in WP(C) No.4472/2003, the petitioner although got an opportunity of being heard in the matter, but the sa id right of hearing was by way of post decisional hearing. 10. In the impugned order dated 23.7.2003, the authority in the A.S.E.B. has contended that the pay of the petitioner could not have been stepped up and/or equated with that of Sri Rabi Lal Das, who initially at entry level was borne in a different cadre i.e. Meter Reader. But while holding so, the authority lost s ight of the fact that eventually, both the petitioner and said Sri Rabi Lal Das were in the same cadre and in fact, the petitioner was promoted at an earlier po int of time than that of said Sri Rabi Lal Das. 11. The authority also lost sight of the fact that the particular fixation w as not at the behest of the petitioner. It is the authority in the A.S.E.B., who provided fixation benefit to the petitioner and the petitioner having enjoyed the said benefits all along, the A.S.E.B. could not have taken the impugned deci sion so as to effect the pay fixation retrospectively even to the extent of near ly 20 years. There being no hand of the petitioner in the particular fixation of his pay at par with that of Sri Rabi Lal Das and the petitioner having already enjoyed the said benefit of fixation, in my considered opinion, the respondents could not have ordered for retrospective re-fixation of his pay with resultant e ffect of recovery of certain amount. As noted above, the petitioner has already retired from service of the A.S.E.B. 12. The respondents in their impugned order have also referred to the Office Memorandum dated 10.3.1977 (Annexure-G to the writ petition). In reference to t he said office memorandum, it is the further contention of the respondents that the particular pay protection could not have been provided as the promotion of t he petitioner and Sri Rabi Lal Das was not in the same year. On a total reading of the said office memorandum, what is found that is that the intention in the s aid office memorandum was to provide protection to the senior, in case a junior is getting more pay. Although in the initial entry grade, the petitioner was borne in a different cadre than Sri Rabi Lal Das, but as noted above, in the hig her grades, both the incumbents were in the same cadres. It was on that count, t he pay of the petitioner was fixed in reference to Sri Rabi Lal Das. Nearly 20 y ears thereafter, the respondents could not have set at naught the said settled p osition by a stroke of pen. 13. Under similar circumstances, the Apex Court in Bhagwan Shukla v. Union o f India & Ors, reported in AIR 1994 SC 2480 held that on the plea of wrong fixat ion of pay over the years, the respondents could not have re-fixed the pay of th e petitioner. In the said case, noticing the fact that there had been flagrant v iolation of the principles of natural justice and the petitioner was made to suf fer huge financial loss, the Apex Court observed that fair play in action warran ted interference with the matter. 14. In view of the above, the writ petition is allowed and the impugned orde rs dated 25.10.2002 (Annexure-C) and 23.7.2003 (Annexure-F) are set aside and qu ashed. Resultantly, the petitioner will be entitled to all consequential benefit s. 15. Mr. Haque, learned counsel for the petitioner submits that in view of th e pendency of this proceeding, the respondents have not granted the pay to the p etitioner on the basis of the earlier fixation. Since the impugned order has be en set aside and quashed, the salary of the petitioner shall stand protected in terms of the earlier fixation of pay that was prevalent prior to the impugned or ders. Consequently, the petitioner will be entitled to receive his salary on tha t basis and not on the basis of the impugned orders. Consequential order shall b e passed immediately. 16. The writ petition is allowed leaving the parties to bear their own costs.