IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:9845/2008 Reserved on: 3.6.2009 Decided on: 19.6. 2009 S.J. Bhatnagar. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Addl. Advocate General. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Field Investigator Grade-I in the pre-revised pay scale of Rs. 450-800. He was promoted to the post of Investigator vide office order dated 28.6.1985 on ad hoc basis. He started drawing pay as Investigator @ of Rs. 570/- with effect from 28.6.1985. His pay was fixed at Rs. 1800/- with effect from 1.1.1986 in the revised pay scale of Rs. 1800-3200. He was promoted as regular Investigator with effect from 22.4.1988. He continued to draw his salary as per his pay fixed on the date of his initial ad hoc promotion. He was granted proficiency 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 increment with effect from 13.12.1994 and his pay was fixed at Rs. 2050. Subsequently, he was promoted as Assistant Research Officer on 28.7.1998 retrospectively with effect from 1.7.1996. He exercised his option for his pay fixation vide letter dated 6.11.1998 and accordingly his pay was fixed pursuant to notification dated 17.5.2002. However, vide impugned order dated 20.8.2007, his pay has been re-fixed with effect from 1.1.1986 purportedly under Government of India order No.2 appended below FR 35. Mr. Dilip Sharma, Advocate has strenuously argued that the petitioner has not been afforded reasonable opportunity of being heard before the issuance of Annexure A-7 dated 20.8.2007. He then contended that the petitioner was promoted on 28.6.1985 on ad hoc basis and the decisions dated 18.7.1986 and 29.7.1987 could not be invoked for re-fixing the salary of the petitioner. He has relied upon decision No.1 appended to FR 35. He further contended that the ad hoc promotion and subsequent regular promotions of the petitioner were in accordance with law and the same were not assailed by any person before the appropriate forum. He has lastly contended that the respondents cannot be permitted to re-open the promotion, which has been effected from 28.6.1985. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the issuance of letter dated 20.8.2007. His contention is that the petitioner was not required to be heard on the basis of decisions dated 18.7.1986 and 29.7.1987. The persons, who were in the zone of consideration, were left out from consideration while the petitioner was promoted to the post of Investigator on ad hoc basis. I have heard the learned counsel for the parties and perused the documents annexed with the petition carefully. 3 The petitioner was promoted to the post of Investigator on ad hoc basis on 28.6.1985. His pay was fixed at Rs. 570/- which was subsequently revised to Rs. 1800-3200 with effect 1.1.1986. He was promoted on regular basis on 22.4.1988 and he was drawing his salary as fixed on the date of his initial promotion i.e. 28.6.1985. He was granted proficiency increment and was promoted to the higher post of Assistant Research Officer on 28.7.1998 though retrospectively with effect from 1.7.1996. His pay was fixed after he had exercised the option and the same was further revised after the notification dated 17.5.2002. The effect of issuance of Annexure A-7 dated 20.8.2007 was that his pay was reduced from Rs. 1800/- to Rs. 1500/- with effect from 1.1.1986. Thereafter he was getting Rs. 1880/- which was reduced to Rs. 1800/- as on 22.4.1988. His pay was fixed at Rs. 2250/- on 13.12.1994 after giving him proficiency increment which was reduced to Rs. 2060/-. He was drawing Rs. 7660/- as on 1.7.1996. However, the same has been reduced to Rs. 6600/-. He has been reduced from Rs. 8100/- to Rs. 7220/- from 1.1.1997. His date of annual increment has also been altered from 1.1.1997 to 1.7.1997. His pay as on 1.7.2007 was Rs. 11,320/-, which has been reduced to Rs. 10,300/- after the issuance of Annexure A- 7. The petitioner has been visited with severe civil and evil consequences. He was required to be heard before the issuance of Annexure A-7. His pay was reduced, as noticed above, without hearing him. Their Lordships of the Hon’ble Supreme Court have held in Rajesh Kumar and others versus Dy. CIT and others, 2007 (2) SCC 181 that when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. Their Lordships have held as under: 4 “26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v.Dr. (Miss) Binapani Dei and Ors. (1967 (2) SCR 625). It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance of principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.” The petitioner has been promoted on ad hoc basis on 28.6.1985. He was promoted on regular basis as Investigator on 22.4.1988. His promotion was never assailed by any person, who may be in the zone of consideration. He was further promoted as Assistant Research Officer. This promotion has also not been assailed by any person in any competent court of law. The plea of Mr. R.K. Sharma, learned Senior Additional Advocate General that few persons were left out while considering the case of the petitioner cannot be accepted at this belated stage. In case any person was aggrieved by the promotion of the petitioner he should have assailed the same in accordance with law within a reasonable period. The only ground mentioned in Annexure RA/14 dated 3.8.2007 for the re-fixing the pay of the petitioner is that it has resulted in anomaly in pay fixation of Sh. P.K. Rana and Smt. Swaran Latta. There is nothing on record that Sh. P.K. Rana and Smt. Swaran Latta had made any representation. Presuming hypothetically that the representations were made by these persons, in that eventuality also the petitioner was also required to be heard before taking any decision detrimental to his interest. 5 Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Sushil Kumar Paul and others, AIR 1998 SC 1925 have held that if junior is getting more pay than the senior due to his earlier ad hoc promotion, the senior is not entitled to stepping up of his pay. Their Lordships have held as under: “6. In this case what had happened was that the respondents and Mishra were appointed as typists clerks on different dates but were promoted to the post of Welfare Inspector Grade -III on the same date. Mishra was promoted to Grade II earlier than the respondents on ad hoc basis. He was promoted as Welfare Inspector Grade II on 1.2.1981 on ad hoc basis and worked continuously on the higher post upto 1.1.84 on which date the two respondents and Mishra were promoted as Welfare Inspectors Grade II on regular basis. At that time he was getting a higher pay than the respondents because of his earlier ad hoc promotion. Mishra was again promoted as Welfare Inspector Grade I on ad hoc basis and worked on that post continuously from 28.7.86 to 13.1.93. On 13.1.93 the respondents and Mishra were promoted to Grade I on regular basis. On that date also Mishra was getting a higher pay because of his ad hoc promotion as Welfare Inspector Grade I. It was for that reason that Mishra, even though was a junior, was getting more pay than the respondents. In view of these facts, the Circular governing stepping up of pay issued by the Railway Board and the law laid down by this Court in Union of India & Others Vs. O.P. Saxena ( 1997 (6) SCC 360 ) the respondents were not entitled to the benefit of stepping up. The Tribunal, thus committed an error in granting that benefit to the respondents. We, therefore, allow these appeals and set aside the impugned orders of the Tribunal.” The respondents while issuing orders dated 3.8.2007 and 20.8.2007 have omitted to take into consideration instruction No.1 6 appended to FR 35. The petitioner had started drawing higher salary with effect from 28.6.1985. He has neither misrepresented nor misled the authorities while fixing his salary @ Rs. 570/- after his promotion to the post of Investigator on ad hoc basis and thereafter he was regularly promoted as Investigator on 22.4.1988. Thus the benefit which has accrued to the petitioner on 28.6.1985 could not be withdrawn belatedly after the lapse of 22 long years. There is no force in the submission of Mr. R.K. Sharma that it is a fit case where FR-31-A was required to be invoked. The petitioner was promoted on ad hoc basis on 28.6.1985. He was regularly promoted as Investigator and to the post of Assistant Research Officer on 28.7.1998. The respondents have not placed any documents on record that the promotion of the petitioner in any manner was erroneous. The respondents cannot be permitted to invoke FR-31-A at this belated stage. The respondents cannot effect recoveries from the salary of the petitioner in view of the observations made hereinabove. Accordingly, the petition is allowed. Annexure P-7 dated 20.8.2007 is quashed and set aside. There will, however, be no order as to costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*