- (1.) R. B. Misra, J. Heard Sri Anil Kumar learned Counsel for the petitioners as well as Sri S. S. Sharma learned standing Counsel. In this writ petition, the order dated 20th July, 1991 (Annexure- 5 to the writ petition) has been challenged by which the petitioners' salary fixed in the pay scale of Rs. 975-1660 was released. The case was dismissed in default on 29-4-2003 by the carelessness and non-appearance of the Advocate, therefore, the restoration/recall application has been filed. It is also discourtesy not to provide proper justification to recall the order, however, in the interest of justice the order dated 29-4- 2003 is recalled and the case is again heard on merits.
(2.) THE counter-affidavit has been filed. Para 3 of the counter- affidavit reveals that the petitioner was working as 'paricharak' in the pay scale of Rs. 750-940 and after completion of 16 years of service he was entitled for promotional pay scale which is Rs. 775-1025 as provided in para 10 of the Government order dated 3- 6-1989 providing procedure for pay fixation of revised pay scale. Para 10 of the aforesaid Government order provides that the cadre/post having no promotional avenue shall be given to the next pay scale i. e. , promotional pay scale of Rs. 775- 1025, however, the Principal Government Fruit Preservation Training Centre, Gorakhpur under bona fide wrong impression allowed the pay scale of Rs. 975-1660 to the petitioner and the matter was brought to the notice of State Government, an explanation was sought on 28-8-1990 from the Director, Horticulture. THE Director by his letter dated 26-10- 1990 informed the State Government that the said scale was given in reference to para 10 of the G. O. dated 3-6-1989, therefore, further direction was asked for whereupon the matter was referred to the Finance Department, which submitted its report that the pay scale of Rs. 775-1025 was admissible only and not the pay scale of Rs. 950-1660. Ultimately the State Government issued Government order on 11-1-1992 that the Class-IV employee working in the Horticulture Department are entitled to the promotional pay scale of Rs. 775-1025 and not the pay scale of Rs. 975-1560. According to the contents of para 4 of the counter-affidavit, the petitioner was entitled to next pay scale of Rs. 775-1025 in view of para 10 of the G. O. dated 3-6-1989 consequently by the impugned order the recovery of the excess payment made to the petitioner was initiated, the mistake was apparent which was rectified. Learned Counsel for the petitioners has submitted that the under bona fide impression given, the petitioners were granted a higher pay scale and were extended pecuniary benefits, the same could not be reduced without proper opportunity of hearing to them.
(3.) LEARNED Counsel for the petitioners has referred and relied upon, (1994)2 Supreme Court Cases 521, Shyam Babu Verma and others v. Union of India and others, where the higher pay scale erroneously given under a bona fide impression to the writ petitioners in the year 1973, was reduced in the 1984 and the writ petitioners received the higher scale due to no fault of their, therefore, it was just and proper not to recover any excess amount already paid to them as held by the Supreme Court. In (1994)28 Administrative Tribunals Cases 258, Bhagwan Shukla v. Union of India and others, the Supreme Court has held that when the pay fixation on promotion was subsequently reduced on the ground that the such fixation was erroneously vague at the initial stage and such reduction passed without affording opportunity of hearing was not justified being in violation of the principles of natural justice. It was held as given below : "the appellant has obviously been visited with civil consequences but he had been granted no opportunity to show-cause against the reduction of his basis pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Therefore, the impugned order by which the pay of the appellant fixed on his promotion as Guard-C from the post of Trains Clerk was sought to be reduced is not sustainable. ";