Pankaj Kumar v. The State of Bihar Through Principal Secretary Road Construction Department, Government Of Bihar, Patna

.... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Prasad Singh, Sr. Adv. For the Respondent/s : Mr. Subodh Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 02-01-2013 Heard learned counsel for the parties. In this writ application, the prayer of the petitioner reads as follows:-

1. That this is an application for quashing of the order dated 24/9/2012 contained in letter No. 969 issued Superintending Engineer, Road Construction Department, Road Circle, Saharsa and all orders referred in Annexure-1 regarding reversion of petitioner and further for restraining the Respondents from interfering, in any manner so far service of petitioner as Accounts Clerk and further all consequential benefit of service.

Mr. Rajendra Prasad Singh, learned senior counsel Patna High Court CWJC No.21673 of 2012 (2) dt.02-01-2013 2 appearing for the petitioner, has submitted that once the petitioner was given the higher pay-scale of the post of Account Clerk, it could not have been taken away without complying the principle of natural justice. He has also submitted that the case of the petitioner is squarely covered by the judgment of this Court dated

6.3.2012 in CWJC No. 2485 of 2012 Jitendra Kumar Vs. the State of Bihar and others (Annexure-13). Mr. Subodh Kumar, learned counsel for the State, on the other hand in absence of counter affidavit has submitted that though the principle of natural justice before passing of the impugned order does not seem to have been followed but the case of the petitioner is quite distinguishable on facts from the case of the petitioner of CWJC No. 2485 of 2012 inasmuch as the appointment of the petitioner was correctly made in the pay scale of Rs. 3050-4590 but later on he was illegally granted pay scale of Rs. 4000-6000. In the considered opinion of this court the undisputed fact is that when the petitioner was given a higher pay-scale of Rs. 4000-6000 by an order dated 25.2.2004 passed by Superintending Engineer of the Road Construction Department, Saharsa, the same had conferred him with consequential financial benefits and as such it could not have been taken away and/or Patna High Court CWJC No.21673 of 2012 (2) dt.02-01-2013 3 reduced to Rs.

3050-4590/- without following the principle of natural justice. To that extent, Mr. Singh is correct in placing reliance on the order of this Court dated 6.3.2012 in the case of Jitendra Kumar (supra) relevant portion whereof reads as follows:- “-------- Grant of a particular pay scale is not a matter of right for a government servant. But once a pay scale is granted to him by the respondents he has a right to receive that pay scale in accordance with law. If the respondents are of the opinion that the grant of the earlier pay scale was erroneous, they retain powers to correct the same. But once a pay scale is granted to a government servant it creates a right in him. That right may be limited and amenable to correction by the respondents, cannot be justification to make unilateral correction visiting the government servant with adverse civil consequences reducing his pay scale without any opportunity of defend.

Any administrative order which visits a government servant with adverse civil consequences has to comply with principles of natural justice. An administrative order reducing the pay scale in violation of the principles of natural justice is a nullity from its inception, akin to a dead child. Equating an order in violation of natural justice as akin to a still born child it has been observed in (1974) 2 SCC 121 (Nawabkhan Abbaskhan v. State of Gujarat) as follows:-

19. In the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it — not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never guilty of flouting an order which never legally existed.

issuance of The petitioner has specifically asserted in para 9 that before impugned order no opportunity for show cause for defending the pay scale granted was given to him.

Had the respondents adhered to the basic principle of law, perhaps the present litigation could have been avoided. After the cause may have been shown by the petitioner the respondents may have become wiser. Alternately if they had passed a reasoned order after considering the objection, the petitioner may have had a rethink if it was in his interest to pursue matters. The arbitrary order generates litigation. The impugned orders do not contain any recital Patna High Court CWJC No.21673 of 2012 (2) dt.02-01-2013 4 that a show cause notice had been issued and the reply considered. This lends credence to the pleading in para 9 of the writ application that the orders appears to have been issued in violation of the principles of natural justice. While the Government has a right to correct erroneous orders, the right is not absolute but is limited by transparency, answerability and accountability. There has to be a finality to the actions of the Government in dealing with the citizens.

The authorities in the State Government cannot keep taking shifting stand adopting a flip flop attitude taking different decisions at different times at variance with each other with regard to the same person.” (underlining for emphasis) That being so, when this is an admitted fact that the petitioner was not given any show-cause notice before passing of the impugned order reverting/reducing his pay-scale from Rs. 4000-6000/- to Rs. 3050-4590/-, this Court would find it difficult to sustain such order. The impugned order is, accordingly, quashed and the respondents are hereby directed to give a show-cause notice to the petitioner as with regard to reduction of his pay-scale on any ground whatsoever within a period of eight weeks of the receipt/production of a copy of this order and also pass a fresh final order in next eight weeks from the date of filing of show cause reply, if any, by the petitioner which he must submit within three weeks of receipt of service of show cause notice.