IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 10116 of 2008 Decided on : 01.12.2010 ___________________________________________________________ Sunil Dev and others …Petitioners. Versus F.C.-cum-Secretary (Finance) & Ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mr. Tek Chand Sharma, Advocate. For Respondents : Ms. Ruma Kaushik, Addl. A.G. Kuldip Singh, Judge ( Oral) The petitioners in this petition have prayed for quashing office order No.44 /2002 dated 16.1.2002 whereby the petitioners who were earlier promoted to the rank of Junior Assistants vide office order No. 275/99 dated 9.6.1999 were designated as Junior Assistants in the pay scale of ` 4400 – 7000 by placement from the dates mentioned in the office order dated 16.1.2002. The petitioners have further prayed that respondents may be directed to allow continuity of earlier promotion order made vide office order No.275/99 dated 9.6.1999. It has also been prayed that the petitioners may be allowed the protection of their pay as a Senior Clerk/Junior Assistants under F.R. 27 or as a measure personal to them as has been done in several similar cases. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The petitioners have challenged the impugned placement order dated 16.1.2002 Annexure A-1 whereby the promotion of the petitioners as Junior Assistants in the pay scale of ` 4400 – 7000 ordered earlier vide office order No. 275/99 dated 9.6.1999 Annexure A-2 has been modified /withdrawn/cancelled wrongly, arbitrarily, unconstitutional by ordering placement. The pay of the petitioners was already fixed in the pay scale of ` 4400 – 7000 which will reduce by one to three increments due to impugned placement. The impugned notification has been issued all of a sudden without assigning any reason and also without serving show cause notice and without calling options of the petitioners. The reduction in pay and recovery thereof is arbitrary, unconstitutional, illegal and is punitive in nature. On these facts, the petitioners have filed the petition and have prayed for the reliefs noticed above. 3. The respondents have contested the petition by filing joint reply. It has been stated that petitioners were designated as Junior Assistants in the pay scale of ` 4400 – 7000 by placement in pursuance of H.P.Govt. Notification dated 31.5.2001 read with Govt. instructions dated 3.11.2001. The office order dated 16.1.2002 and office order dated 9.6.1999 were issued in pursuance to the Government notification. There is nothing illegal in the orders as Annexure A-1 has been issued in accordance with the Pay Rules and instructions. The provision of FR 27 is not relevant in the present case as the pay fixation of Junior Assistants is to be regulated as per the Government notification and is to be fixed in accordance with the provisions of placement. It is also the stand of the respondents No.1 to 3 that no recoveries upto 30.5.2001 were to be effected and only pay was to be re-fixed. 3 4. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioners that the impugned action of the respondents has adversely affected the petitioners inasmuch as the petitioners were earlier promoted as Junior Assistants and now they have been given the placement as Junior Assistants instead of promotion as Junior Assistant. The consequence of impugned action is that the pay of the petitioners has been reduced and petitioners will lose one to three increments. The impugned action of the respondents has civil consequences. The petitioners were not heard nor they were given any option before the impugned action was taken by the respondents. It has been submitted that due to impugned action the pay of the petitioners has been reduced from back date and no doubt the Government have waived off recoveries to some extent but still the recoveries have not been waived off altogether. The learned counsel for the petitioners has relied Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475 and Division Bench judgment of this Court in CWP(T) No. 9003 of 2008 dated 5.1.2010 titled Narain Singh and others vs. Commissioner- cum-Secretary(Revenue) and anr. He has submitted that the respondents have given the earlier benefit to the petitioners by promoting them as Junior Assistants. It is not a case where the petitioners mis- represented or played fraud for obtaining undue benefit from the respondents. The petitioners were given benefit by the respondents in their own wisdom. A right had accrued in favour of the petitioners due to earlier benefit given by the respondents. Such right could not have been taken away by the respondents without following the principles of natural 4 justice and for the same reasons no recoveries can be made from the petitioners as a consequence of impugned action of the respondents. 5. In Syed Abdul Qadir (supra) the Supreme Court has held as follows:- “Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants- teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 6. The learned counsel for the petitioners has submitted that the Division Bench judgment in Narain Singh’s (supra) is more nearer to the facts of the present case. The Division Bench in that case has held as follows:- “Petitioner was promoted w.e.f.1.1.1996 pursuant to orders dated 1st December, 1998. The general revision of pay scale was notified and issued on 20th January, 1998. The pay of the petitioner was enhanced. However, vide order dated 5 31st December, 2001 the promotion of the petitioner as Junior Assistant in the pay scale of ` 4400 – 7000 has been withdrawn. This order has been passed admittedly without hearing the petitioner. The petitioner has been visited with civil and evil consequences. It is settled law by now that any order which has civil and evil consequences must be passed in accordance with the principles of natural justice. Accordingly, Annexure A-1 dated 31st December, 2001 is quashed and set-aside. However, liberty is reserved to the respondents to proceed with the matter in accordance with law. The petition stands disposed of.” In the present case also the impugned action has been taken without hearing the petitioners. Therefore, in view of the judgment dated 5.1.2010 in Narain Singh’s (supra), the impugned action of the respondents is not sustainable. 7. No other point was urged. 8. The result of the above discussion, the petition is allowed, Annexure A-1 dated 16.1.2002 so far petitioners are concerned is quashed and set-aside. However, liberty is reserved to the respondents to proceed with the matter in accordance with law after hearing the petitioners either collectively or through their representatives. No costs. ( Kuldip Singh ), December 1, 2010, Judge. (GR)