Principles of natural justice must be adhered to in administrative actions, pay revision does not equate to promotion, unsolicited advice of Accountant General can be set aside

Heard learned counsels for the petitioner, State and the Accountant General.

2. There is an Interlocutory Application (I.A. No. 1995/2016) filed by the petitioner bringing subsequent events on record. Let it be treated as a part of the writ proceedings. There is a counter affidavit on behalf of the State as well as the Accountant General, Bihar, Patna.

3. With consent of the parties, this writ petition is being disposed of at this stage itself.

4. The grievance of the petitioner is that he retired on 30.09.2013. Consequent to the retirement, his pensionary benefits had to be worked out by the Accountant General, Bihar, on the basis of the last pay certificate granted by the Department, instead, office of the Accountant General took a view that the petitioner had been granted the 1st A.C.P. with effect from 09.08.1999 and the 2nd A.C.P. was granted with effect from 27.08.1999, which was wrong as with effect from 01.01.1996, there were revision of pay scale and, consequently, an upward revision of pay. Thus, there being an upward revision of pay with effect from 01.01.1996. The grant of A.C.P. would be considered only after this. In other words, the Accountant General was of the view that there being a pay revision with effect from 01.01.1996, that would be taken to be a promotion granted and, therefore, the petitioner would not be entitled to 1st A.C.P. and the 2nd A.C.P. would be calculated from the said date. For this, they relied upon a State Government circular dated 25.01.2008. They, accordingly, recommended by their communication dated 27.12.2013 to the Government to correct the last pay, accordingly. Consequent to this, not only the department reduced the last pay drawn but ordered for substantial recovery from the petitioner. It is these actions that has brought the petitioner to this Court.

5. The consequence was not only petitioner’s last pay was reduced, his pensionary benefits were calculated on this reduced pay scale substantially effecting petitioner.

6. The first thing, I would like to note is that, no reduction in pay scale or any action, which has adverse consequences, in respect of a person, can be taken without the person being heard. This is basic fundamental principles of administrative law and an integral part of principles of natural justice. Any action taken to the prejudice of a person, without hearing him, would be void ab initio. It is not disputed either by the Accountant General or by the State that at any point of time before petitioner’s pay scale was refixed, reducing it or before ordering recovery, no show cause whatsoever was asked from the petitioner muchless any proceeding initiated. The Accountant General and the department acted most arbitrarily in total disregard to the rights of individual and, that too, a retired employee. Though on this point alone, the unsolicited advice of the Accountant General and the actions of the State can be set aside. I do not propose to leave it at that, for even otherwise, the advice of the Accountant General is not legal and the State merely followed what was dictated by the Accountant General without application of mind.

7. Prior to Assured Career Progression Scheme, there was a Scheme for time bound promotion. This was introduced along with 4th Pay Commission of the State as an anti stagnation step. The whole object of the Scheme was that employees who did not get promotion or who could not get promotion because of lack of promotional avenue or post and stagnated for considerable period, they were to be given the next higher pay scale. The first and the second time bound promotion, depending upon the nature of service, was at the end of 10 years and 15 years. Subsequently, this time bound promotion scheme was replaced by Assured Career Progression Scheme (A.C.P.). Now, of course, even this has been replaced by what is known as Modified Assured Career Progression Scheme (in short “M.A.C.P.”). The whole basis was that a person though qualified for promot