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2017 Supreme(Pat) 855
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJENDRA MENON, ANIL KUMAR UPADHYAY, JJ.
Awadhesh Kumar Dubey, Son of Late Raj Kumar Dubey – Appellant
Versus
The State of Bihar & Ors. – Respondents
Letters Patent Appeal No.1283 of 2016
Decided On : 30-08-2017
For the Appellant :Mr. Tej Bahadur Singh, Sr. Advocate
For the Respondents:Mr. Chittaranjan Sinha, Mr. Sudish Kumar, Mr. Bindhyachal Rai, Advocate
The main legal point established in the judgment is that no advantage and benefit can be taken away without compliance of principles of natural justice, as established in AIR 1967 SC 1269 and 1989 SC 568.
Headnote:
PAY SCALE - PAY SCALE CORRECTION - Finance Department Resolution No. 660(2) dated 8.2.1999, AIR 1967 SC 1269, 1989 SC 568 - The court discussed the Finance Department Resolution No. 660(2) dated 8.2.1999 and the principles of natural justice and fair play as established in AIR 1967 SC 1269 and 1989 SC 568. The court found that the action of the respondents in revising the pay scale adverse to the interest of the appellant was unsustainable in the eye of law and accordingly quashed the decision and restored the pay fixation of the appellant in terms of the Resolution No. 660 of the Finance Department dated 8.2.1999.
Fact of the Case:
The appellant filed a Letters Patent Appeal against the dismissal of the writ petition challenging the correction in his pay scale. The court examined the original Service Book and found that the pay scale of the appellant was fixed on the basis of his option as per Form-D and was duly incorporated in the Service Book. However, certain corrections were made in red ink without any endorsement or reason provided.
Finding of the Court:
The court found that the action of the respondents in reducing the pay scale adverse to the interest of the appellant was taken without any opportunity of hearing, and thus, was violative of the principles of natural justice and fair play. The court quashed the decision and restored the pay fixation of the appellant in terms of the Resolution No. 660 of the Finance Department dated 8.2.1999.
Issues: The issues involved the correction in the pay scale of the appellant, the principles of natural justice and fair play, and the entitlement of the appellant to restoration of pay scale and benefits.
Ratio Decidendi: The court held that no advantage and benefit can be taken away without compliance of principles of natural justice, as established in AIR 1967 SC 1269 and 1989 SC 568. The action of the respondents in revising the pay scale adverse to the interest of the appellant was unsustainable in the eye of law.
Final Decision: The appeal was allowed, and the order of the learned Single Judge was set aside. The court quashed the decision of the respondents and directed the restoration of all benefits to the appellant in terms of pay fixation as per the option exercised by the appellant in Form-D in terms of the resolution No. 660 of the Finance Department dated 8.2.1999.
ANIL KUMAR UPADHYAY, J.
1. The appellant has filed the instant Letters Patent Appeal under Clause 10 of the Letters Patent of the Patna High Court Rules against the judgment dated 3.5.2016 passed in CWJC No. 5150 of 2014 whereby the writ petition filed by the appellant was dismissed by the Writ Court on the ground that Annexure-2 is not an option in terms of Form-D and obviously is a creation as an afterthought to build a case for interference with the decision taken in the year 2002.
2. The writ petition was filed by the appellant challenging the correction in the pay scale of the appellant done by the District Accounts Officer on 26.10.2002. The Writ Court relying on the statement of the counsel for the State that Annexure-2 is not the option in Form-D and it is an afterthought to build a case after decision of revision of pay scale by the District Accounts Officer dated 26.10.2002, dismissed the writ petition.
3. In the Letters Patent Appeal, counsel for the appellant submitted that the Writ Court has committed error of record in ignoring Annexures 2, 4 and 5 and dismissed the writ application on misconstruction of fact as well as law. This Court in order to examine the veracity of claim of the appellant vide order dated 30.3.2017 directed the respondents to produce the original Service Book of the appellant for perusal of the Court at the time of hearing. Today counsel for the respondents has placed the Service Book of the appellant, Awadhesh Kumar Dubey, Assistant Teacher +2 Indira High School, Chitravan, Buxar. From perusal of the Service Book we noticed that the pay scale of the appellant was fixed on the basis of his option as per Form-D and his pay was fixed at Rs. 7,501/-. The said pay fixation was duly incorporated in the Service Book by the competent authority in terms of the Finance Department Resolution No. 660(2) dated 8.2.1999. However, in red ink certain corrections have been made without any endorsement as to who has done that correction in red ink in the Service Book and under whose authority the said correction was made. The original Service Book produced before us does not indicate the reason for correction or authority under whose direction the corrections were made in the Service Book.
4. Mr. Tej Bahadur Singh, learned senior counsel appearing on behalf of the appellant has drawn our attention to Annexure-2 of the writ application which is dated 13.3.1999 and the entries in Annexure-2 corresponds to the entries made in the original Service Book produced before us. He further submitted that this identical issue was raised before this court in CWJC No. 9120 of 2005 and vide order dated 10.3.2008, Annexure-5, a Single Bench of this Court on consideration of the entire scheme of pay fixation in terms of the Finance Department Resolution No. 660 dated 8.2.1999, has disposed of the writ application and held out that the petitioners of that case would be entitled for restoration of their pay scale as fixed earlier and also refund of any amount, which has been recovered from their salary. The case of the appellant herein is identical to the case of Sudama Pandey and others in CWJC No. 9120 of 2005, but the Writ Court totally ignoring the aforesaid decision contained in Annexure-5 dismissed the writ petition.
5. Learned senior counsel for the appellant submits that no notice or opportunity of hearing was provided to the appellant before correcting the pay fixation adverse to the interest of the appellant and as such the action of the respondents in reducing the pay scale earlier fixed is violative of the principles of natural justice and fair play and as such unsustainable in the eye of law.
6. Counsel for the respondents submitted that the action of the respondents was belatedly challenged by the appellant and as such the appellant does not deserve any indulgence in view of the belated challenge in the writ petition.
7. The issue of reducing pay scale is a matter of recurring loss and as such it is continuous
