Delhi High Court
Dr. Anil Kumar And Ors. vs Union Of India (Uoi) And Anr. on 22 October, 2005
Equivalent citations: 125(2005)DLT713
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
ORDER S. Ravindra Bhat, J.
Page 2070
1. The petitioners in this case are employees of the National Horticulture Board, the second respondent in these proceedings (hereafter called 'NHB'). They are aggrieved by orders dated 27.5.2003, 29.5.2003 and 2.6.2003 issued by respondents by which n increment granted to them earlier order was withdrawn and a re-designation order issued by the second respondent was also cancelled.
2. The petitioner are working with the NHB. Pursuant to the ISO 9001 : 2000 certification of the NHB in the year 2002, all of them and the other officers of the NHB were granted an additional increment. The petitioners rely upon an advertisement issue in the press, intimating that the Union Minister for Agriculture received the ISO certification on behalf of the NHB; that advertisement also cites that the achievement was possible because of the efforts of the 90 professionals in the NHB.
Page 2071
3. The NHB by an order dated 20th December, 2002 in terms of the power delegated to the Managing Director as per Staff Rules of the Board, (particularly, Rule 38(2) of Chapter IV) sanctioned an additional increment to all the officers and the staff members s in the regular establishment. It excepted/excluded accepted the operation of that order in respect of three officials. The same order also conferred the benefit of re-designation of existing posts in respect of all the personnel.
4. The petitioners given the benefit of an additional increment as also re-designation of their posts. They rely upon subsequent orders in that regard. By the first impugned order dated 29.5.2003, the respondent NHB reviewed the grant of increment. The order inter alia provided as follows:
"2.2 The grant of increments has been reviewed in the Ministry (Department of Agriculture and Cooperative). The increments have not been sanctioned in recognition of exceptional merit to a limited number of employees, but have been sanctioned across the Board to all employees. It has been conveyed vide Ministry's letter No. 12-15/2003/Hort. Letter dated 27th May, 2003 that "not only the increments granted should be withdrawn but they should also stand recovered and NHB should initiate process of recovery immediately".
5. This was followed by another order dated 2.6.2003 by which the benefit of re-designation granted to petitioners and the other employees was also reversed. The relevant part of that order which brought back the original posting/position of all the officials reads as follows:
"2.1 This matter was reviewed in the Department of Agriculture and Cooperation, Ministry of Agriculture.
2.2 These orders have created anomalies such as multiple designations in one single pay and same designation in more than one pay scale in the Board. Many officials have been given designations without the pay scale allowed to others in the Board with the same designations. The re-designations ordered vide the Office Orders mentioned in para 1 above are not in conformity with Chapter IV of the Staff Rules of the Board.
2.3 The Ministry of Agriculture, Department of Agriculture and Cooperation vide letter No. 12-15/2003-Hort. Dated 27th May, 2003 conveyed the orders of the Competent Authority in this regard that (a) "The re-designation accorded to all officials should b e withdrawn immediately. (b) In case NHB feels that there is need for re-designation, it should be examined for putting up a fresh proposal."
3. It is hereby ordered that the designations granted to all officials in the three office orders read in para 1 above, are withdrawn with immediate effect and all such officials in NHB will henceforth function with the designations they were holding immediately before the issue of such orders.
4. The proposal with regard to (b) in para 2.3 above is being examined separately."
Page 2072
6. The petitioners have impugned the orders as arb ary and not being preceded by an opportunity of hearing. The respondents in their return have stated that the impugned orders were issued in bona fide exercise of power and that they are not vitiated b any arbitrariness or discrimination. It is also averred that as per clause 5 of memorandum of association of NHB, overriding power is reserved with the Central Government to review all the decisions of the society and issue such directions as may be necessary for achievement and furtherance of the objects of NHB.
7. It is averred that the work performed by the petitioners which led to the organisation securing ISO certification was part of the normally assigned duties of its officers and that such achievement was not exceptional since several other organisations h d also secured similar certification. The NHB and the Union of India which filed a common counter affidavit have also averred that the power to grant increment under Rule 38(2) for exceptional achievement was relatable to individuals and could not be conferred on the entire staff in the establishment or a whole class, of persons.
8. Learned counsel for the petitioner submits that the impugned orders are arbitrary and un-sustainable in law. He relies upon Rule 38(2) to say that there is nothing in the text of the rule to inhibit conferment of a class benefit to a large body of employees. In fact, the order granting the benefit of one increment deprived the same to a few individuals which discloses that the authority concerned applied its mind and decided that all persons who were responsible for the NHB having achieved commendable performance were entitled to the benefit. In these circumstances, the unilateral withdrawal of their increment was contrary to Article 14 as well as issued without observing the principles of natural justice. 9. Learned counsel submitted that once the increment was granted and re-designation was effected, the status of an employee stood altered and he secured a vested right or benefit which could not be taken away without following the due process of law or without following any procedure in conformity with Articles 14 and 16 of the Constitution of India. For this purpose, he has relied upon the judgment reported as Munna Ram and Ors. v. UOI and Ors., 113(2004) DLT 232(DB). Reliance has also been placed upon the decision of the Supreme Court in Sahib Ram v. State of Haryana and Ors., (1994) 28 ATC 747. It was contended that in these cases the Courts recognised that whenever benefits of advance increment and/or re-designation in higher posts are granted, the authority concerned cannot reverse such decisions or recover amounts without issuing notice and granting a hearing to the employees likely to be effected.
10. Learned counsel for the respondents, on the other hand, submitted that the Central Government which issued directions to the NHB was of the opinion that the grant of increment could not be across the board and had to be given in a discerning manner Reliance was placed on Rule 38(2) appearing in Chapter IV of the Staff Rules. He also submitted that as far as re-designation Page 2073 is concerned, no vested or other right was involved. In fact, the NHB was bound to follow the directions of the Central Government which had taken the view that this has resulted in certain anomalies; in that for one pay-scale more than one post which was likely to be resulting confusion.
11. The decision in Munna Ram's case, rendered by a Division Bench of this Court was concerned with the issue of withdrawal of a benefit of re-designation granted to Assistant Sub-Inspectors carrying higher pay-scales granted to the petitioners there. The order impugned in those proceedings, the re-designation stood reversed which resulted also in the reduction in pay-scales. The court after setting out the facts of the case held as follows:
"5...We are of the considered opinion that re-designation of the petitioners and adjusting them in the pay-scale of Rs.4000-Rs. 6000 after re-designating them as Assistant Sub-Inspectors, created vested right in favor of the petitioners and if such vested rights is sought to be taken away from the petitioners, the same can be done after following the rules of principles of natural justice. The petitioners were entitled to a show cause notice whereupon the petitioners could have represented and shown to the respondents that the adjustment of the petitioners in the pay-scale of Rs.4000-Rs.6000 and re-designating them as Assistant Sub-Inspectors, was legal and valid. They have admittedly been deprived of such right without giving them an opportunity of hearing. Their vested rights are being sought to be taken away vide the impugned order dated 27th December, 2001.
7. In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case. In our considered opinion, taking a unilateral decision on a subject as the present one whereby the vested right of the petitioner is being affected is not permissible without following the principles of natural justice and without affording an opportunity to represent and being heard to the petitioners. The said action cannot be sustained. We are not going into the other contentions raised by the parties, for the present. Liberty is given to the parties to urge the same and seek adjudication of those pleas in the future in any appropriate proceedings, if the need arises. The impugned order dated 27th December, 2001 is set aside and quashed for the aforesaid reasons. The order passed by the respondents in the case of the petitioners directing reduction of their pay-scales and recovery from their salary, is set aside and the petitioners shall be permitted to work as Assistant S b-Inspectors till an order is passed by the respondents in accordance with law. Such order, when passed can also be challenged by the petitioners on all available grounds, if so advised, in accordance with law".
12. In the two Supreme Court judgments cited at the Bar, the Court had similarly held that where the benefit of increments and/or higher pay-scales is granted the employer is under a duty to give some notice and opportunity before passing any adverse order since not following such a procedure would have an adverse effect on the rights of the employees concerned. In my opinion, the ratio of the decisions cited above apply squarely to the facts of this case. Page 2074 Admittedly, the respondents did not issue any no ice or grant any opportunity of hearing either to the petitioners or the employees, either individually, or as a class before reversing the grant of increment and affecting the re-designation. Therefore, keeping in view the decision of the Munna Ram's case, the most appropriate relief would be to set aside and quash the impugned orders.
13. The respondents are directed to restore the increment withdrawn from the petitioners and not make any recovery pursuant to the impugned orders. Liberty is however reserved to the respondents to issue show cause notice in respect of any decision it choose to take. The respondents shall also grant reasonable opportunity to make a representation to the petitioners and pass a speaking order after considering the representations of the employees concerned.
14. The writ petition is allowed to the above extent. The application for interim relief also accordingly disposed off. No costs.