Gauhati High Court
Rajesh Basfor vs Tura Town High School And Ors. on 20 July, 2001
Author: N.S. Singh
Bench: N.S. Singh
JUDGMENT N.S. Singh, J.
1. In this writ petition, the petitioner Sri Rajesh Basfor questioned the validity and propriety of the impugned orders dated 19.6.1995 and 4.7.1995 as in Annexures C&D respectively to the writ petition issued by the Secretary Tura Town High School, Tura informing the petitioner that unless the post of Cleaner/Sweeper of the School concerned is renewed by the Government under the regular scale of pay, the school cannot pay the petitioner more than Rs. 1,100 only with effect from 1.3.1995 by contending inter alia, that the petitioner was initially appointed as a Cleaner/Sweeper in the government aided Tura Town High School, Tura West Garo Hills, Meghalaya hereinafter referred to as Tura High School on purely temporary basis in the scale of pay of Rs. 300-5-330-6-390-7-425 per month plus other allowances as admissible under the rules of Aided-Deflcit High Schools with a probation period of one year which may be extended to one year more if necessary vide, related order dated 4.8.1988 as in Annexure-A to the writ petition and, accordingly, the petitioner joined the service as Cleaner/Sweeper of the said school and since then, he has been discharging his lawful duties round the clock to the satisfaction of the authority concerned and, by virtue of the Meghalaya Pay Revised Rules which came into force in the year 1989, his old scale of pay has been revised to Rs. 820-10-870-EB-15-975-20-1175 PM and the petitioner also earned five increments at the relevant time and he enjoyed the total remuneration of Rs. 2079.70 since the month of April 1995 but, like a bolt from the blue, he was intimated on 1.6.1995 that his salary has been reduced and fixed at consolidated Rs. 1,100 per month from the month of May 1995 and he would not be paid salary which he was drawing till the month of April 1995 and being dissatisfied with the action of the authority concerned under the impugned orders dated 19.6.1995 and 4.7.1995 as in Annexures - C and D to the writ petition, the petitioner filed several representations to the authority concerned but, all were in vain and having no alternative, the petitioner filed this writ petition seeking relief from the end of this Court.
2. The case of the petitioner is resisted by the respondent Nos. 1, 2 & 3 as well as State respondent Nos. 4 to 6 by filing counter affidavits separately. According to the School respondent Nos. 1, 2 & 3, the petitioner was appointed as Cleaner/Sweeper on the strength of the letter dated 8.8.1988 as in Annexure -A to the writ petition on the basis of the sanction accorded by the Inspector of Schools concerned as it was required to be obtained before such appointment and the post held by the petitioner was a temporary post and it is subject to the sanction of the post by the Inspector of Schools each year and it was sanctioned every year from 1988 to 23.2.1995 but, thereafter, the authority concerned had sanctioned only a consolidated pay of Rs. 1,100 only with effect from 1.3.1995 vide, Memo. No. SWG/GR-1/95/5336-47, dated Tura, the 22nd May 1995 of the Inspector of Schools. West Garo Hills, Tura and, accordingly, a sum of Rs. 1,100 is to be afforded to the petitioner as consolidated pay even though, the petitioner was regularly paid full salary as per regular pay scale fixed by the Government of Meghalaya until the receipt of such letter dated 22.5.1995. It is also the case of the School respondents that the Town High School had entertained additional staff like, the petitioner with any government sanction and, as such, it is beyond the power of the school authority to afford regular time scale of pay of Cleaner/Sweeper to the writ petitioner after the competent authority had sanctioned only consolidated pay of Rs. 1,100 for the post of Cleaner/Sweeper.
3. The State respondent Nos. 4, 5 & 6 took the plea that the post of Sweeper/Clearner was never created and sanctioned by the Government for the said Town High School, Tura and no prior approval or sanction was obtained by the school before appointing the petitioner with the regular pay scale of Rs. 300-425 per month initially and subsequently, with the Revised Scale of Pay and through inadvertently and mistake, the then Inspector of Schools, West Garo Hills, in a most irregular manner approved the entire resolution and proceeding dt. 12.5.1989 of the Schoold authority and no formal approval letter approving the appointment of the petitioner in the prescribed scale was ever issued by the government and, subsequently, the government detected these irregularities happening not only in the Town High School, Tura but also in other schools and, subsequently, the State respondents had found that as many as 19 schools including the Tura High School, Tura had entertained additional staff without any government sanction vide, office letter dtd. 29.8.1994 as in Annexure-E to the writ petition and the State respondents took up the steps for verifying and confirming the correct position in the matter. It is also the case of the State respondents that since there was no prior approval of the government for creation of a post of Cleaner/Sweeper in the High School. Tura and the approval accorded by the Inspector of Schools concerned on the body of the proceeding of the Managing Committee of the School was in a most irregular manner, the government had decided to extend the lump sum payment of Rs. 1,100 per month only to the writ petitioner with effect from 1.3.1995 onwards and, the related order dated 22.5.1995 as in Annexure-F to the writ petitioner was issued.
4. Now this court is to see and examine as to whether the present writ petitioner has enforceable legal right in the instant case or not; and whether the action of the authority concerned/respondents in causing the reduction in the time scale of pay of the petitioner from higher scale of pay to lower scale of pay, in other words, to a consolidated pay of Rs. 1,100 amounts to punishment or reduction in rank or not within the purview of Service Jurisprudence.
5. On perusal of the available materials on record and also upon hearing the learned counsel for the parties as well as after proper application of my mind in this matter, I am of the view that the action of the respondents concerned while passing the impugned orders dtd. 19.6.1995 and 4.7.1995 as in Annexures C&D to the writ petition virtually amounts to reduction in rank of the writ petitioner and, such action deprives of the legitimate rights of the petitioner for the following reasons:
(i) The writ petitioner was initially appointed as Cleaner/Sweeper under the related appointment order dated 4.8.1988 as seen in the document marked as Annexure-A to the writ petition which was done on the basis of the sanction accorded by the Inspectors of the Schools and, accordingly, the petitioner has been enjoying the time scale of pay of Rs. 820-1175 for many years till the month of April 1995 and at that relevant time, the petitioner was drawing his full salary of Rs. 2079.70 but, by virtue of the impugned orders mentioned above, the time scale of pay afforded to the petitioner for many years had been reduced to a consolidated pay of Rs. 1,100 and, that too without affording any reasonable opportunity of being heard before such deduction of pay was made by the appropriate authority which, in my considered view, it is violative of the principles of natural justice.
(ii) It may be true that the petitioner was appointed in the said post of Cleaner/Sweeper in the said school since 5.8.1988 on the basis of the sanction accorded by the Inspector of Schools and that too might have been done without the prior approval of the Government and, for the fault of the authority concerned, a question arises in the instant case that whether the petitioner should suffer for the fault of the competent authority like, the present respondents concerned. In my considered view, the answer is "No". At this stage, the principles of de-facto should be attracted and it shall play a great role in the matter. Be that as it may, if the time scale of pay so far afforded to the petitioner to the total tune of Rs. 2097.20 is to be reduced to a consolidated pay of Rs. 1,100, it would be just and fair on the part of the authority concerned to afford an opportunity to the petitioner by issuing a prior notice to show cause as to why the regular time scale of pay afforded to the petitioner should not be reduced and. consolidated pay of Rs. 1,100 with effect from 1.3.1995 should not be made or not; but, it was not done so by the appropriate authority before passing the impugned orders, in other words, the authority concerned did not follow the procedural standard prescribed by law before passing the impugned orders thus, causing arbitrariness and illegal impugned orders.
(iii) It is well settled that a right which has been given once to a person or persons and if the same is to be withdrawn or taken away by the authority concerned under certain reason and circumstances, no boubt, it can be withdrawn after affording reasonable opportunity of being heard or say to the person or persons by assigning reasons concerned. This is what, we call the principles of natural justice. In the instant case, it was not done so by the appropriate authority while reducing the regular time scale of pay, in other words, the total salary of Rs. 2079.70 afforded to the petitioner pay to the tune of Rs. 1,100 with effect from 1.3.1995 which, according to me, it is not fair, rather, it is unjust and the same is not tenable in the eye of law. It is a good commonsense as I brought commonsense in interpreting this matter in the instant case.
(iv) Realising the irregularities committed by the respondents/ authority concerned, the authority concerned took action for creating one post of cleaner for regularisation of the services of the writ petitioner as seen in the document marked as "X" for identification namely, the office latter dated 4.1.2001, bearing No. EG. I/CC/2/2000/63 issued by the Dy. Director of Higher & Technical Education, Meghalaya, Shillong.
(v) As discussed above, once a right has been conferred and given upon a person or persons, if it is to be withdrawn, at least those persons should be given a chance or opportunity of being heard or say in the matter and, if such opportunity is not given before withdrawing such rights conferred upon him or her then, the action of the respondents amounts to violation of the principles of natural justice. This is the law of the land. In the case in hand, according to me, reduction of scale of pay of the writ petitioner from higher pay to consolidated pay of Rs. 1,100 per month amounts to reduction in rank and status of the writ petitioner.
(vi) In the instand case, the action of the State respondents while passing the impugned orders amounts to civil consequence undoubtedly covered infraction of legal right of the writ petitioner.
(vii) It is well settle that the Public Body invested with a statutory powers, such as those conferred upon must take care not to exceed or abuse its powers and it must keep within the limits of the authority committed to it and, it must act in good faith and it must act reasonably and their discreation in the matter should be exercised reasonably, fairly and justly but, in the instant case, these legal mandates were not followed by the authority concerned while causing the reduction of the time scale of pay of the petitioner to a consolidated pay of Rs. 1,100. The petitioner is a cleaner/sweeper rather, a harizon (Scheduled Caste) belonging to a poor and weeker section of the society who has been rendering his services since the year 1988 with his full salary entitled to him to the tune of Rs. 2079.70 till the month of April 1995, whose such rights had been deprived of without any justification thus, entitling him to a consolidated pay of Rs. 1,100 after rendering a continuous services of about 7 (seven) years. In my considered view, it is too much for the State respondents.
6. In view of the above position, this Court has no alternative but, to protect a righteous and poor citizen like, the petitioner herein with the aid of law. This Court need not go more into depth as suffix is made with the above observations so as to protect the legal rights of the writ petitioner.
7. For the reasons, observations and discussions made above, I am of the view that the petitioner has enforceable legal right in the instant case and, accordingly, the impugned orders dated 19.6.1995 and 4.7.1995 as in Annexures C&D to the writ petition are hereby quashed thus, entitling the writ petitioner to draw and enjoy the time scale of pay of Rs. 820-10870-EB-15-975-201175 with usual annual increments in terms of Revised Scale of Pay as on today for the period from the month of May 1995 till date for which, the State respondents namely, the respondent Nos. 4, 5 & 6 shall provide necessary fund to the said School authority namely, the respondent Nos. 1, 2 & 3 so as to enable the petitioner to draw his regular time scale of pay mentioned above and, it is also made clear that the arrear salary of the writ petitioner for the said period shall be paid to the writ petitioner by the authority concerned/respondents within a period of 2 (two) months from the date of receipt of this order after proper adjustment of the amount already drawn by the petitioner as consolidated pay whatsoever the case may be and, he shall be paid his monthly salary regularly.
In the result, petition is allowed but, no order as to costs.