Mohammad Rafiq, J. - (1.) THESE two writ petitions have been filed by the petitioners challenging the order dt. 03/06.12.1994 (Ann.4 in both the writ petitions) by which respondents reduced their pay scale from Rs. 775 -12 -871 -EB -14 -1025 to that of Rs. 750 -12 - 870 -EB -14 -940. Learned Counsel argued that the respondents called name of some persons from the Employment Exchange Jaipur for the post of Attendant in pay scale of Rs. 775 -12 -871 -EB -14 - 1025; thereupon, names of the petitioners were sponsored by Employment Exchange Jaipur and, thereafter, respondent No. 2 issued an interview letter to the petitioners to appear for interview on 30.03.1991 at 10.00 a.m. and when they were selected, offer of appointment was given to them as per memorandum dt. 09.05.1991. Apart from other service conditions, it was clearly indicated therein that they would be appointed at the initial pay of Rs. 775/ - per month in the scale of Rs. 775 -12 -871 -EB -14 -1025 and that they would also be entitled to get dearness allowance as per the rates admissible under the condition laid down in the rules and orders governing the dearness allowance from time to time as applicable to the servants of Central Government. Learned Counsel argued that when petitioners accepted the offer of appointment, appointment order was received on 30.05.1991 clearly indicating therein that their appointment would be made at the basic pay of Rs. 775/ - per month in the pay scale of Rs. 775 -12 -871 -EB -14 -1025 with the usual allowances admissible under the rules. Copies of these orders are on record. Suddenly however, respondents vide order dt. 03/06.12.1994 arbitrarily reduced the pay scale of the petitioners from Rs. 775 -12 -871 -EB -14 -1025 to that of Rs. 750 -12 -870 -EB -14 -940 on the plea that incorrect pay scale was inadvertently indicated in order dt. 13.05.1991. It was argued that when the offer of appointment was given to the petitioners in the scale of Rs. 775 -12 -871 -EB -14 - 1025 and accordingly acting upon offer of appointment, petitioners accepted the appointment and appointment order was also issued in that scale, now, changing the pay scale would tantamount to change of the condition of service. Learned Counsel for the petitioners submitted that the impugned order was passed without providing any opportunity of hearing to the petitioners and without indicating therein that their does not exist any vacant post in the scale of Rs. 775 -12 -871 -EB -14 -1025. Learned Counsel citing from documents placed on record by respondents in their additional affidavit submitted that the post of Attendant was also there in the scale of Rs. 775 -12 -871 -EB -14 -1025 and in that, there can be no cause of confusion because in the cadre structure of respondents, the post of Attendant (Survey)/Cook/Daftry falls in the pay scale of Rs. 750 -12 -870 -EB -14 -940. The impugned order be therefore quashed and set -aside.
(2.) LEARNED Counsel for the petitioners in support of his contention, placed reliance on the judgment of the Division Bench of this Court in UOI and Anr. v. Nathi Lal and Anr. . Per contra, Shri J.P. Goyal, learned Counsel for the respondents opposed the writ petitions and argued that pay scale of Rs. 775 -12 - 871 -EB -14 -1025 was applicable to the post higher than the post of Attendant (Survey)/Cook/Daftry. The mistake occurred at the clerical level while issuing the appointment order. Learned Counsel submitted that the post of Attendant simply carries the pay scale of Rs. 750 -12 -870 -EB -14 -940. He in this connection referred to the office Order No. 1585 dt. 08.12.1986. It was a simple case of clerical mistake therefore opportunity of hearing was not required to be given. Learned Counsel submitted that if the petitioner is allowed to draw his salary in that very pay scale, this would become a wrong precedent in other cases also. He in this connection, relied on the judgment of this Court in Abdul Salam and Anr. v. Maharana Pratap University and Ors., 2004 WLC (Raj.) UC 621.
(3.) CONSIDERATION of the arguments aforesaid and perusal of the material available on record clearly indicates that unlike in normal cases of rectification of mistake, present case has got entirely different feature. In normal circumstances, this Court has been allowing the respondents to rectify the mistake at least prospectively if it is shown that the orders that were passed granting of increment or selection scale or making pay fixation etc., were result of inadvertent mistake resulting in excess payment being made to the concerned government servant. In such cases, though Courts are not permitting recovery to be made from the effected employees unless it is shown that such mistake was attributable to fraud or misrepresentation on the part of such employee. However, in the present case, request that was sent to the Employment Exchange was not only for the post of Attendant but also indicated the pay scale of Rs. 775 -12 -871 -EB -14 -1025. Petitioners were called for interview for that post and when they were selected, they were offered consequential appointment in the pay scale of Rs. 775 -12 -871 -EB - 14 -1025 vide order dt. 13.05.1991. In that order also, pay scale that was shown is Rs. 775 -12 -871 - EB -14 -1025. Learned Counsel for the respondents could not justify why by the impugned order corrections in this regard were made belatedly raising anomalies. But the facts remain that once the offer of appointment on the post of Attendant in the pay scale of Rs. 775 -12 -871 -EB -14 -1025 was accepted by the petitioners and pursuant thereto appointment order dt. 13/5/1991 was issued, a right has been crystallized in their favour to be paid in the pay scale of Rs. 775 -12 -871 -EB -14 -1025, which right, could not be lightly tinkered with by the respondents and the pay scale could not be reduced to that of Rs. 750 -12 -870 -EB -14 -940. If this action of the respondents is allowed to stand, it would tantamount to changing the condition of appointment of the petitioners. Judgment of this Court in Abdul, relied on by the learned Counsel for the respondents is on the facts where wrong selection scale was given to the concerned employee in the wrong scale of pay. That was when he was still in service of the respondents. In the present case, however, even before the petitioners entered in the services of the respondents, were offered appointment in that pay scale and were actually appointed in that pay scale and was eventually confirmed with the same pay scale which is being sought to be reduced.;