SUNIL PRASAD v. THE PATNA MUNICIPAL CORPN.&ORS

The petitioner was confirmed on the post of Senior Accounts Assistant and was asked to officiate as an Accounts Officer on 1.12.1990. He was then granted regular pay scale of Rs. 2200- 4000 with annual increment with effect form 21.12.1991 and

21.12.2003. In pursuance of the 6th Pay revision he was placed in the corresponding pay scale of Rs. 8000-13500 with effect from 1.1.1996. However on 12.3.2005 the lower pay scale of Rs. 5500-9000 was recommended by the Executive Officer of the Corporation as payable to the petitioner after the 6th pay revision with effect from 1.1.1996. The Standing Committee of the Corporation on 26.4.2004 reduced the pay scale of the petitioner to Rs. 4500-7000. This was alleged to have been done without notice to him. He filed C.W.J.C. No. 6792 of 2005 which was disposed on 9.7.2008 with direction to the respondents to consider his representation. The respondent Corporation then by an order dated - 2 -

26.8.2008 held that his pay scale before pay revision was Rs. 2200- 4000 and accordingly held that after pay revision he was entitled to the pay scale of Rs. 6500-10500. Soon thereafter again by ex parte order dated 11.9.2008 with no reason mentioned in it, the petitioner was informed that the pay scale of Rs. 6500-10500 had been given to him wrongly and therefore it was being stayed. It is submitted that what was the error in the pay scale granted by a reasoned order on

26.8.2008 was never made known to the petitioner. He filed a representation against the same. The respondents have now issued another order dated 12.12.2008 that the revised pay scale could not be paid to the petitioner without approval of the Bihar Public Service Commission and in view of the audit objection by the office of the Accountant General. Learned counsel for the petitioner submits that what this audit objection is, also is not mentioned in the order. He next submits on date that there are no audit objections on this aspect. The next submission on behalf of the petitioner is that in fact no approval from the Bihar Public Service Commission is required as is evident from the letters of the State Government dated 3.8.1998 and of the dated 29.3.97 at Annexure-20 series, since, the petitioner was an employee of the Municipal Corporation and which alone was competent to take decisions with regard to grant of pay scales. Counsel for the State Government and the Commission stand by the letters dated 3.8.98 and 29.3.97 and do not raise any objections with regard to the aforesaid communications made by them respectively to the Patna Municipal Corporation. - 3 - Counsel for the Patna Municipal Corporation prays for time to seek instructions and file counter affidavit. No useful purpose shall be served by keeping this writ application pending before this Court for that purpose. Prima facie this Court is satisfied that the petitioner has made out a case for interim stay. Any interim order passed shall remain operational for years without final adjudication as this Court today is hearing writ application of the years 2001-02. The respondents reduced the pay scale of the petitioner ex parte on 12.3.2005. The petitioner came to this Court in the year 2005. In 2008, this Court directed his representation to be disposed. The respondent Corporation by a reasoned order then granted him the benefit. After having granted him the benefit, it recalled the benefit ex parte without notice or opportunity to him by a non speaking order. The fact that the petitioner may have filed a representation shall hardly be of any avail to the respondents. They cannot be permitted to put the cart before the horse. If the law mandates that they were required to issue show cause notice to the petitioner before staying the benefit granted to the petitioner by their order dated 11.9.2008, that the petitioner may have filed a representation does not absolve the respondents of their legal duties. The order dated 11.9.2008 being in violation of the principles of natural justice becomes a still born order. That the petitioner may have filed a representation, even it be considered , that still leaves open the question that the ground urged by the Municipal Corporation of the lack of concurrence of the - 4 - Public Service Commission appears to be a non est ground in view of the letters of the State Government dated 3.8.98 and of the Commission dated 29.3.97. Even the next ground stated of an audit objection is claimed by the petitioner to be no more in existence. These are issues which could have easily been resolved by the Corporation itself and an unwanted writ petition prevented from coming before this Court. This shall also have saved unnecessary expenses and paper work for the Corporation leaving its officials for more time to discharge their primary municipal duties for which it has been created. Principles of natural justice now stands enshrined as a basic condition regarding rule of law. The Municipal Corporation consists of educated officials. They have a panel of legal advisors including their own law officers. If, instead of taking their advice, the officials of the Corporation consider themselves to have superiority over the law and insist on acting contrary to the law, there is little the Court can do about it except to set aside such illegal orders. If the petitioner has been given an opportunities by the Corporation before issuance of the impugned orders dated 11.9.2008 and 12.12.2008, the petitioner could have explained everything to the Corporation and then it would have passed appropriate orders more particularly in light of the letters of the State Government and the Commission relied upon by the petitioner and which letters counsel for the State and the Commission do not oppose. The conduct of the Corporation leaves this Court with little - 5 - option but to set aside the impugned orders dated 11.9.2008 and

12.12.2008 as being in complete violation of the principles of natural justice. The impugned orders are accordingly set aside. The duty of the Court is to set aside an order which is illegal. What has to be done thereafter or needs to be done is for the authority to decide and not for the Court to advise. The writ application stands allowed. P. Kumar (Navin Sinha, J.)