RAJ NATH RAM Vs. STATE OF U P

JUDGEMENT

(1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Raj Nath Ram, seeks the following reliefs :-

(2.) Briefly stated, the facts giving rise to the present petition are as follows:- According to the petitioner, he was appointed on 21.11.1983 as Assistant Employment Officer. He had faced selection through the U.P. Public Service Commission, Allahabad (hereinafter referred to as "the Commission"). Vide order dated 26.11.1983 passed by the Director, Training and Employment, he was posted at Bahraich. However, vide order dated 28.11.1983, the Director, Training and Employment modified his earlier order dated 26.11.1983 and posted the petitioner at Varanasi where he joined on 5.1.1984. While working as Assistant Employment Officer, he applied before the Director, Training and Employment, U.P., Lucknow, for permission to appear in the Combined Upper Subordinate Services Examination, 1988, which permission was granted vide order dated 6.4.1989. The petitioner appeared in the Combined Upper Subordinate Services Examination, 1988 conducted by the Commission. He was selected by the Commission and on its recommendation he was granted appointment on the post of the Sub Registrar vide order dated 1.10.1993. The petitioner was relieved by the Director, Training and Employment,, vide office order dated 27.10.1993 and the consequential relieving order dated 29.10.1993 issued by the Regional Employment Officer, Varanasi. Thereafter, the petitioner joined his duties in the office of the Inspector General of Registration, U.P., Allahabad and underwent the requisite training at the office of the Sub Registrar, Etah Sadar. After completion of successful training, the petitioner got regular posting as Sub Registrar. The Finance and Accounts Officer in the office of the Inspector General of Registration, U.P., Allahabad, vide order dated 15/17.2.1997 fixed the basic pay at Rs.2,420/- as on 30.10.1993 with a personal pay of Rs.30/- on the ground that the petitioner prior to his joining on the post of the Sub Registrar was working as Assistant Employment Officer in the pay scale of Rs.2000-3200 whereas the pay scale of the Sub Registrar was Rs.1600-2660. While doing so he has taken recourse to Rule 22-A of the Fundamental Rules, F.H.B., Vol. II, Part II-IV (hereinafter referred to as "the Fundamental Rules"). The basic pay beginning 1.1.1994 was fixed at Rs.2,480/-; Rs.,2540/- from 1.1.1995 and Rs.2,660/- from 1.1.1996. It was fixed in the revised pay scale at Rs.2,675/- with effect from 1.1.1997. The petitioner was paid regular salary on the basis of the pay fixed by the Finance and Accounts Officers on 15/17.2.1997 till the month of April 2002. However, the Inspector General of Registration, U.P., Allahabad, vide order dated 1.5.2002, upon review of the earlier fixation of the basic pay of the petitioner, had refixed at a lower level with a further stipulation of payment made in excess be recovered from the petitioner. The order dated 1.5.2002 is under challenge in the present petition on the ground that the said order has been passed in a wholly arbitrary and discriminatory exercise of power which is violative of Article 14 of the Constitution of India and there does not exist any power of reviewing the fixation of salary which has been made several years back. It entails civil consequences and, therefore, it should have been passed in conformity with the principle of natural justice after giving a notice to show cause and opportunity of hearing. Further, the said order is based upon an erroneous interpretation of Rules 22 and 22-C of the Fundamental Rules. In any event, recovery of payment already made to the petitioner, which payment have been made voluntarily without there being any misrepresentation or fraud at the level of the petitioner, cannot be made.

(3.) In the counter affidavit filed by Faujdar Singh, Deputy Inspector General of Registration, on behalf of the respondents, it has been stated that as the petitioner was not permanent in his earlier post, the pay fixation has to be made under Rule 22-C of the Fundamental Rules and, therefore, the basic pay has been refixed vide order dated 1.5.2002, which is in accordance with law. It has further been stated that the Head of Department had full power and authority to pass amended and rectified order in order to check financial irregularity due to wrong and incorrect fixation of pay in the petitioner's matter and there was no necessity of giving any opportunity of hearing to the petitioner as the amended order has been passed strictly in accordance with the provisions contained in the Fundamental Rules. The petitioner who has drawn excess salary than what he was entitled, is bound to return the same to the Government.