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Syed Ikram Hussain & Others v. State Of U.P. & Others - WRIT - A No. 4439 of 1999 [2007] RD-AH 6160 (4 April 2007)


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Court No.25.

Civil Misc. Writ Petition No. 4439 of  1999

Syed Ikram Hussain and others Vs. State of U.P. & others.

Hon'ble Sudhir Agarwal, J.

  Heard Sri Ranjit Saxena, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.

  The petitioners have challenged the order dated 23.12.1998, passed by the Executive Engineer, respondent no.2, cancelling his earlier order fixing pay scale of Rs. 1400-2040 w.e.f. 1.1.1986 and directing for making  recovery of entire amount already paid to the petitioners. The grievance of the petitioners is that the impugned order is in utter violation of principles of natural justice and therefore liable to be quashed.

In brief, the facts as stated are that the petitioners were appointed as work supervisor in the pay scale of Rs. 175-250/- on various dates namely, 1.8.1979, 1.12.1973, 1.11.1974, 15.3.1980 and 25.9.1981 respectively. There was another cadre of Sinchpal which was initially at par with the work supervisor but subsequently, the pay scale in respect to the said cadre was revised to Rs.950-1500/- and in respect to Sinch Paryavekshak Rs. 975-1660/-. The Engineer-in-Chief, Irrigation vide letter dated 12.3.1981 recommended to the Government that the pay scale of work supervisors may also be approved and revised to Rs. 1200-2040/- with effect from 1.1.1986. In some other cases, the Executive Engineers at their own level passed orders granting pay scale of Rs. 1200-2040/- to Work Supervisors w.e.f. 1.1.1986 whereupon petitioners filed writ petition no. 40976 of 1997 before this Court seeking a direction to the respondents to give pay scale of Rs. 1200-2040/- as has been granted in the case of others, namely, Vashistha Muni Mishra. The writ petition was finally disposed of vide judgment dated 8.12.1997 with the following directions:

" The writ petition is finally disposed of with the direction that the case of the petitioners for determination of salary in the grade of Rs. 1200-2040/- w.e.f.1.1.86 shall be considered in the light of the case of case of Vashishtha Muni Mishra whose pay has been determined in the aforesaid pay scale, within two months from the date of production of a certified copy of this order."

        The Executive Engineer, thereafter passed an order on 27.2.1998 granting the pay scale of Rs. 1200-2040/- w.e.f. 1.1.1986 to the petitioners and their pay was also fixed accordingly. Subsequently, by order dated 23.12.1998 impugned in this writ petition  the respondent no.2 has cancelled the aforesaid orders granting scale of Rs. 1200-2040/- and also directed for recovery of the amount paid pursuant thereto.

       The respondents have filed their counter affidavit wherein the appointment of the petitioners on the post of Work Supervisor in the scale of Rs. 175-250/-, subsequently revised to Rs. 825-1200/- is not disputed. However, it is said that though the State Government never approved the pay scale of Rs. 1200-2040/- for the Work Supervisor, yet a subordinate authority, namely, Executive Engineer in a wholly illegal manner issued orders, granting higher pay scale to the petitioners and various other similarly placed persons, causing a huge financial loss to the public exchequer. When this matter came to the notice of the State Government, the directions were issued enquiring as to under what authority such pay scale was granted to the work supervisors, whereupon, the Executive Engineer cancelled his earlier order which he had passed without any authority and in a wholly illegal manner. It is submitted that in these circumstances, since the order passed by the Executive Engineer granting the scale of Rs. 1200-2040/- to the Work Supervisor, was wholly without jurisdiction, the principles of natural justice are not attracted and the order impugned in the writ petition cannot be faulted for this reason. It is also stated that Vashistha Muni Mishra, another employee citing examples whereof the petitioners claim parity for the scale of Rs.1200-2040/-, in his case also the order granting pay scale of Rs. 1200-2040/-, was cancelled whereagainst he filed writ petition no.1400 of 1999 Writ Petition No. 1400 of 1999 (Vashishtha Muni Mishra Vs. State of U.P. and others) decided on  which has been decided on 19.5.2004 and this matter is squarely covered by the aforesaid judgment. Learned counsel for the petitioners did not dispute that the order impugned in the writ petition and the issue involved herein is similar to the one which has been decided by this Court in Vashistha Muni Mishra (Supra) and, therefore, learned counsel for the parties agree that the issue in the present case is squarely covered by the aforesaid judgment. This Court has disposed of the writ petition of Vashistha Muni Misra with the following direction:

"(17)    I have heard learned counsels for the parties. I find that on the representation of the petitioner for granting pay scale of Rs. 1200-2040/- of Seench Paryavekshak the same was granted by the Superintending Engineer as well as Executive Engineer, who were not authorised to pass such order as granting of certain pay scale or allocation of pay scale to certain category of persons is to be passed by the State Government. More so, when the State Government had already taken a decision on 17.12.1993 rejecting the claim of petitioner then opinion of Standing Counsel could not be treated to be a decision of the State Government and in reference to opinion of the Standing Counsel granting of a particular scale by the Superintending Engineer/Executive Engineer shall have no validity. Allocation of a particular pay scale to an employee or official of State Government could be granted by a competent authority only. In the facts and circumstances, though it is very clear that such decision of granting a particular scale was already refused by the State Government on 17.12.1993 even then the petitioner was to be given notice and he was to be given opportunity of hearing before withdrawing the benefit already accrued to him. Since the petitioner could not demonstrate and prove before this Court that he is entitled for the scale of Seench Paryavekshak  or scale of Rs. 1200-2040/-. Only on the strength of allocation of pay scale in the garb of the order dated 30.05.1997 passed in Writ Petition No. 31173 of 1995 the Superintending Engineer and Executive Engineer have unauthorisedly allocated the pay scale, who were not competent to allocate the same. If the petitioner is legally entitled to a particular scale only then he could be allocated the same by a competent authority. On the analysis of the facts and circumstances it appears that a particular scale has been granted to the petitioner though by an incompetent authority, but a right has accrued to the petitioner and before taking that right or annulling the same the petitioner was to be given a notice and he was to be afforded opportunity of hearing before taking any decision. In the peculiar facts and circumstances, the petitioner was entitled for opportunity of hearing before taking a decision by the Superintending Engineer on 09.12.1998 and also before passing a consequential order dated 18.12.1998 by the Executive Engineer. In the present facts and circumstances, these impugned orders are not legally sustainable, therefore, these are set aside. However, keeping in view the gravity of the matter a wide ramification would be created and in view of the allocation of pay scale and principle elaborated for allocation of equal pay for equal work in the decision taken by this Court (Hon'ble R.B.Mishra, J.) dated 23.07.2003 passed in Civil Misc. Writ Petition No.12694 of 1990 (Ramayan Ram and another Vs. State of U.P. and others) and also keeping in view that equality of post and determination of pay scale to a particular post is the work of executive, more so, of the State Government, a fresh decision has to be taken. By cancellation of such orders, impugned in the present writ petition, on the ground of principle of natural justice  the petitioner shall not be automatically entitled for the rectification of unauthorized illegal order made in favour of the petitioner, however, a fresh order has to be passed by the competent authority, i.e., Principal Secretary/Secretary of Irrigation Department giving notice and opportunity of hearing to the petitioner and after taking his reply, if necessary, oral hearing and if required taking into consideration his evidence and supporting documents. If the petitioner only chooses to give written submission that would be treated to be sufficient requirement for affording opportunity of hearing. The Principal Secretary shall specify particular date, time and place, where the petitioner shall be under obligation to represent his case personally or through his legal representative and the petitioner shall not take unnecessary adjournments and the appropriate decision shall be taken within two months from the date of production of certified copy of this order and allocation/fixation of pay scale to the petitioner shall depend upon the subsequent decision to be taken by the State Government. If the decision of the State Government is taken in view of the above observations after affording opportunity of hearing and the State Government decides that the petitioner is not entitled to the allocation of pay scale claimed by him then excess payment made to him shall be recoverable or adjustable reasonably in the instalments in future from the salary to be paid to the petitioner. State Government, if necessary, shall also hear the Engineer-in-Chief, Superintending Engineer and Executive Engineer of the Irrigation Department.

In view of the above observations, the writ petition is disposed of."

In view of the fact that  the issues raised in the present writ petition are squarely covered by the aforesaid judgment, this writ petition is also disposed of in terms of the order passed in the writ petition of Vashistha Muni Mishra(supra). There shall be no order as to costs.




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