SBCWP23/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.23/1997 {Hira Lal Vs. State of Rajasthan and Another} Date of Order ::: 13.01.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Sanjeev Prakash Sharma, Counsel for petitioner Shri Hari Barath, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging the orders dated 15.11.1996 by which previous pay-fixation and pay revision orders of the petitioner in terms of the Revised Pay Scale Rules of 1976, 1983, 1987 and 1989 were withdrawn and re-fixation orders were undone and recovery was ordered to be made. The petitioner has also challenged the consequential order of recovery issued by the Assistant Engineer, PWD, Sub Division Beawar, dated 09.12.1996. Shri Sanjeev Prakash Sharma, learned counsel for the petitioner has argued that the petitioner was initially appointed as Surveyor SBCWP23/1997 // 2 // on work-charge basis on 19.08.1963; he was declared semi permanent vide order dated 01.01.1966; that order was subsequently revised and he was declared semi-permanent with effect from 19.08.1965 vide order dated 20.11.1980. He was later on declared permanent under Rule 3 (ii) of the Work Charge Service Rules with effect from 18.08.1973, vide order dated 20.02.1976. He was granted the benefit of pay revision and accordingly his pay was fixed as per the Revised Pay Scale Rules, issued from time to time, i.e. of 1966, 1969, 1976, 1981, 1986 and 1988. After the petitioner completed more than 10 years of service, he was placed in the regular establishment in May, 1979. On 02.12.1972 a Circular was issued by the Government making amendment in the order dated 22.05.1969, whereby pay scales were prescribed for the work charge employees and the said amendment which was made by order dated 02.12.1972 was made effective retrospectively from 01.09.1968. Copy of the said Circular is available on the record. The learned counsel for the petitioner further submitted that the pay scales were made admissible to all the employees who were in the pay scale of 120-385 on fulfilling conditions SBCWP23/1997 // 3 // of matriculation and possessing training and experience prescribed by the Chief Engineer. Since the petitioner fulfilled all the conditions as mentioned in the order dated 02.12.1972 as he was matriculated and having two years Diploma in Draftsman (Civil) from I.T.I., as a sort of training in Civil and rich experience of working in the cadre of Surveyor since 1963, he fulfilled the requirement of aforesaid Circular/Amendment. Since this amendment was made in Part-A of Schedule II against Item No.72 to 75 of the Revised Pay Scale Rules of 1969 and made applicable from 01.09.1968, the petitioner was rightly granted the benefit of the said Circular. When a doubt was raised, his case was examined by the competent authority and accordingly the order was passed on 08.08.1995 whereby a fresh pay fixation was made and the petitioner was accordingly informed. In terms of the order dated 08.08.1995 revised fixations were made in the Revised Pay Scales Rules of 1976, 1983, 1987 and 1989. The respondents all of a sudden, without affording an opportunity of hearing to the petitioner, served upon him an order dated 15.11.1996, whereby he was informed that since the fixation of 01.09.1968 was made by SBCWP23/1997 // 4 // the Accounts Officer, PWD, Rajasthan, and not by the competent authority, the approval which was granted of his fixation vide order dated 08.08.1995 was withdrawn and recovery was ordered. Prior to passing of such an order, no opportunity of hearing was given to the petitioner inasmuch as the recovery was ordered to be made. The learned counsel for the petitioner submitted that since the petitioner was working in the pay scale of 120-385, his case was fully covered under Clause (B) of the Order dated 02.12.1972 which was made effective from 01.09.1968, the date on which the petitioner had completed 5 years service as Surveyor and also possessed two years Diploma in Draftsman (Civil) from ITI Ajmer. The conditions of the said Circular were thus fully complied with by the petitioner. Shri Hari Barath, learned counsel for the respondents, opposed the writ petition and submitted that the petitioner passed his Higher Secondary Examination in the year 1960 and completed one year course of National Trade Certificate Draftsman (Civil) from the National Council for Training in vocational trade in the year 1962; this training is related to Labour and Employment Ministry, Government of India. He submitted that the petitioner is not SBCWP23/1997 // 5 // entitled to pay scale of 180-425 because he did not fulfill the requisite training and experience as prescribed by the order of the Chief Engineer dated 13.07.1969. The petitioner is not a Polytechnic Diploma Holder. A wrong pay fixation order, which was issued by mistake, was withdrawn and therefore it was only an action to rectify the mistake which did not necessitate a notice or opportunity of hearing to the petitioner. Having heard learned counsel for the parties and perused the material available on the record, I find that this Court while issuing notice to the respondents vide order dated 10.01.1997 passed an interim order thereby restraining the respondents from recovering the amount pursuant to the orders dated 15.11.1996 and 09.12.1996. The petitioner was 58 years of age at the time of filing of the writ petition and thus he retired long back. In the writ petition, the petitioner has categorically stated at several places that prior to passing the impugned order no opportunity of hearing was given to him and this order was passed after the earlier pay revision order and pay-fixations were approved after examination by the competent authority SBCWP23/1997 // 6 // vide order dated 08.08.1995. The respondents, in their counter- affidavit, do not deny the fact that they did not serve upon the petitioner a notice nor provide him an opportunity of hearing although they maintained the stand that the earlier order was not passed by the competent authority. The Circular of the Government dated 02.12.1972 is on the record whereby amendment was inserted in Items No.72 to 75 of Part A of Schedule II to the Rules; as per the said amendment it was provided that the new pay scale shall also be admissible to the existing employees who have already been fixed in the pay scale of 120-385 on their fulfilling the conditions of matriculation and possessing the training and experience prescribed by the Chief Engineer. It is not in dispute that the petitioner was actually discharging the duties of the post of Surveyor right since 19.08.1963 and that he also possessed two years Diploma in Draftsman (Civil) from I.T.I., Ajmer. He, thus, fulfilled the requisite conditions as referred to above. The only pretext on which the impugned orders were passed and the benefit granted to the petitioner was withdrawn was that it was SBCWP23/1997 // 7 // earlier approved by the Accounts Officer, who was not competent, but there is no denial to the fact, as averred by the petitioner in Para 9 of the writ petition, that the competent authority examined his case and approved the same by order dated 08.08.1995 and that order is available on the record as Annexure-6. Even if it is true then also the impugned orders certainly have civil consequences for the petitioner inasmuch as they withdrew his pay fixation order allowed from 01.09.1968 i.e. from previous 29 years. Order had sever consequences for the petitioner, therefore, such an order could not be passed without affording him an opportunity of hearing. If such an opportunity was given to the petitioner, he would have, in all probabilities, satisfied to the respondents as to the fulfillment of conditions required by the amendment made vide Circular dated 02.12.1972. The order has thus been passed in an arbitrary manner and in colourable exercise of powers and the said order is violative of Articles 14 and 16 of the Constitution of India. In the result the writ petition deserves to be allowed and it is accordingly allowed. SBCWP23/1997 // 8 // The impugned orders dated 15.11.1996 and 09.12.1996 are quashed and set-aside. The petitioner is held entitled to retain all the consequential benefits with interest at the rate of 9% per annum. Compliance of this judgment be made within a period of three months from the date of receipt of a copy of this judgment by the respondents. (Mohammad Rafiq) J. //Jaiman//