PARAS NATH SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD counsel for the petitioner and counsel for the State.

(2.) PRAYER in this Writ application of the petitioner reads as follows: "That this is an application for issuance of writ in the nature of certiorari for quashing the circular No. 345 dated 27.3.2003 as contained in Annexure -12 by which the Executive Engineer, Minor Irrigation Division, Patna, the respondent no. 6 has been pleased to order for recovery of Rs. 1,14,750/ - (Rs. One lac fourteen thousand seven hundred fifty) from the petitioner which have been paid to him excess and for which a recovery has to be made from his salary in sixty (60) installments in which the first instalment will be of Rs. 1,942/ - and thereafter in 59 instalment for which the recovery will be at the rate of Rs.1912/ - and further for quashing the order no. 247 dated 26.12.2001 vide memo no. 6182 dated 26.12.2001 as contained in Annexure -11 issued under the signature of Joint Secretary, Minor Irrigation, Government of Bihar, Patna, the respondent no. 4 by which he has been pleased to cancel the scale of Assistant Driller and Driller of Rs. 975 -1540 to Rs. 1500. -2750 on the ground that the order which has been passed by this Honble Court in C.W.J.C. No. 1689/89 and on the basis of this order the scale which has been sanctioned was without the approval and permission of competent authority and Finance Department and that is illegal and wrong and further for issuance of a writ in the nature of Mandamus commanding the respondent to consider the scale of pay of the petitioner of Rs. 335 -635 from 3rd Pay Revision and from Rs. 730 -1080 as per 4th Pay Revision and from Rs. 1,500 -2,750 as per 5th Pay Anamoly Committee as per Executive Engineer, Minor Irrigation Department, Patna by office order vide memo no. 53 dated 7.1.99 as contained in Annexure -10 and further the respondents be directed to pay the petitioner the scale of Rs. 5000 -8000 as per Sixth Pay Revision Committee report as given in other department of Assistant Driller of the State of Bihar."

(3.) COUNSEL for the State, on the other and, would submit that the petitioner was first of all given the pay scale by the authority who was never competent to do so and in fact the State Government having noticed such rank illegal order passed by the authority in the year 1999 vide Annexure -10 to this writ application had taken remedial steps within a space of three years and by canceling the order passed by the Executive Engineer and had also subjected him to a departmental proceeding and inflicting punishment for this very misconduct. Counsel for the State had also referred to different pleadings in the counter affidavit to substantiate that none in the department holding the post of Assistant Driller was given such pay scale, inasmuch as, there was prescribed requirement of having ten years experience for being granted such scale and the petitioner admittedly had no such experience when the Executive Engineer had bestowed personal favour on him by giving higher pay scale. Counsel for the State, in fact, would submit that if there was no entitlement of the petitioner for being placed in the higher pay scale there was no requirement for giving any show cause notice as the petitioner could not have given any explanation in defence of such order giving illegal higher scale of pay to him.