IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2541 of 2010 1. JAI PRAKASH UPADHYAY S/O LATE CHANDRIKA UPADHYAY R/O VILL RAGHUNATHPUR,P.S.TURKAULIA,DISTT-EAST CHAMPARAN 2. KRISHNA KANT PANDEY S/O LATE GAURI SHANKAR PANDEY R/O MOH AGARWA LALA TOLA,P.S. TOWN (MOTIHARI),DISTT- EAST CHAMPARAN 3. PREM CHANDRA PANDEY S/O SRI ANIRUDH PANDEY R/O MOH MATHIYA JIRAT,P.S.CHHITAUNI,DISTT-EAST CHAMPARAN 4. SMT. SITA MIRA MISHRA W/O SRI SHASHI KUMAR MISHRA R/O MOH BHAWANIPUR JIRAT,P.S.CHHITAUNI,DISTT-EAST CHAMPARAN Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY,DEPARTMENT OF AGRICULTURE GOVERNMENT OF BIHAR. 2. THE PRINCIPAL SECRETARY,DEPARTMENT OF FINANCE GOVERNMENT OF BIHAR,PATNA 3. THE DIRECTOR ,DEPARTMENT OF AGRICULTURE GOVERNMENT OF BIHAR,PATNA 4. THE JOINT DIRECTOR OF AGRICULTURE TIRHUT DIVISION,MUZAFFARPUR 5. THE DEPUTY DIRECTOR OF AGRICULTURE MOTIHARI ----------- 2. 26.8.2010 Heard learned counsel for the petitioners and the State. A counter affidavit has been filed on behalf of the Agriculture Department. No counter affidavit has been filed by the Finance Department by whose actions the petitioners are aggrieved. Counsel for the State submits that despite repeated requests he has received no instructions from the Finance Department. A little co-ordination between different departments of the State Government would not only 2 have resulted in a unified counter affidavit but would also have helped in a just and proper adjudicatory decision by the Court both in the interest of the petitioners and the State. The Court is not persuaded on the prayer to grant further adjournment for counter affidavit by the Finance Department. The petitioners are Head Clerks in different Blocks of East Champaran in the Agriculture Department. The controversy arises in context of the Assured Career progression Scheme, Rules framed by the State Government in 2003 effective from 9.8.1999 (hereinafter called the ‘A.C.P.’) The petitioners were granted 1st A.C.P. by order dated 5.1.2004 in pursuance of the recommendation of the Promotion Screening Committee by formal order dated 25.6.2003 in the pay scale of Rs. 4500-7000/-. On 12.1.2004 they were granted 2nd A.C.P. in the pay scale of Rs. 5000- 8000/- after consideration by the Promotion Screening Committee. The benefits were then revised in light of the Finance Department notification dated 23.3.2006 and other instructions issued from time to time by the Promotion Screening 3 Committee on 6.6.2007 enhancing from 1st A.C.P. to Rs. 5000-8000/- and 2nd A.C.P. to 5500-9000/-. At both stages, the order was individual with regard to the petitioners and not of generalized nature with regard to the employees in general. Approval was sought for the same by the Joint Secretary, Agriculture. The Director of Agriculture on 27.1.2009 declined to give concurrence. This led to the first impugned order dated 2.4.2009 reducing their pay scale in the 1st A.C.P. to Rs. 4500- 7000/- and the 2nd A.C.P. to Rs. 5000-8000/-. The petitioners came to this Court in C.W.J.C. No. 9257 of 2009 which was disposed on 6.8.2009 to pursue matters by filing a representation, so done on 17.8.2009 and reminder given on 4.11.2009. Fresh orders have been passed on 25.11.2009 presently assailed affirming the decision dated 2.4.2009. Counsel for the petitioners submits that the order dated 2.4.2009 was ex parte in nature with no opportunity to the petitioners to defend. There was no justification for the respondents to ignore the factual pay scale of the petitioners as granted along with time bound promotions at Rs. 4500-7000/-on 4 the date that the Fitment Committee gave its report. The petitioners cannot be hypothetically put in the non existent pay scale of Rs. 4000-6000/- as done by the Fitment Committee a pay which they were not factually drawing on the date of the Fitment Committee recommendation. The entire fixation of A.C.P. on an incorrect pay scale is therefore contrary to law. The order dated 2.4.2009 further directs recovery of excess payment so ascertained. Counsel for the State contended that the representation having been considered, pay scales are matters for the authorities to decide and the Court may not interfere. While this Court shall not assume the role of the administrator to fix pay scales, nonetheless, this Court shall examine if the decision making process was correct or vitiated. An order which reduces the pay scale and directs recovery visits a persons with adverse civil consequences. The question is not whether the order of reduction is right or not. The question is if procedures were followed in the decision making with an opportunity to the person to be affected to defend himself. The direction to file a representation results in a statement of what is a perceived 5 understanding of issues by the petitioner. They did not have the benefit of knowing what is passing the mind of the administrator and on what grounds the administrator proposes to reduce the pay scale. The recitals in the order dated 25.11.2009 that the Fitment Committee had fixed their pay scale at the basic level of Rs. 4000-6000/- on basis of which the A.C.P. shall now been fixed was a fact not known to the petitioners and who therefore had no opportunity to represent with regard to the same. The contention that the actual pay scale along with time bound promotion available to them on the date of the Fitment Committee report cannot be scaled down artificially to deny them consequential benefits while allowing them to retain earlier benefits on a pay scale being given before the Fitment Committee report was a matter to be raised, defended and then decided by the administrator. If the petitioners had been given a show cause notice and had been made aware of these grounds, they would have appropriately defended themselves successfully or unsuccessfully. No reason has been assigned in the order dated 25.11.2009, of the circumstances under which the order dated 6.6.2007 came to be passed and for 6 what reason it was erroneous. Unless the petitioners are so made aware of the grounds, any representation by them is a fruitless exercise, failing the test of natural justice before an order adverse having civil consequences is passed. What defence the petitioners may or may not have are irrelevant at this stage. The issue is of compliance with procedures in the decision making process. If the plea had been one of enhancement of ACP pay scale simplicitor the matter would have been entirely different. The impugned order dated 25.11.2009 is therefore set aside and the matter is remanded to the Principal Secretary, Department of Finance with a direction to issue a show cause notice to the petitioners setting out the error, if any, in grant of A.C.P. made to them by order dated 6.6.2007 and why it be not be reduced on specified grounds with an opportunity to the petitioners to rebut the grounds mentioned in the show cause and thereafter take a fresh final decision, in accordance with law. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)