Himachal Pradesh High Court
Som Nath vs State Of Himachal on 21 October, 2022
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
ON THE 21ST DAY OF OCTOBER, 2022
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No.1777 of 2020
Between:
1. SOM NATH, AGE 45
YEARS, S/O SHRI
MAHANT RAM,
RESIDENT OF VILLAGE
SUNHAR, P.O. SAUR,
TEHSIL RAM SHEHAR,
DISTRICT SOLAN (H.P.),
PRESENTLY WORKING
AS JUNIOR ASSISTANT
AT GSSS LOHARGHAT,
TEHSIL RAMSHEHAR,
DISTRICT SOLAN (H.P.).
2. NARESH KUMAR, AGE
45 YEARS, S/O LATE
SHIR RAVIR SINGH,
RESIDENT OF VILLAGE
GAWANT, P.O. BANETHI,
TEHSIL NAHAN,
DISTRICT SIRMOUR
(H.P.), PRESENTLY
WORKING AS CLERK IN
THE OFFICE OF GSSS
BAGTHAN, DISTRICT
SIRMOUR (H.P.)
3. BABU RAM, AGE 51
YEARS, S/O LATE SHRI
THUMBER RAM,
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RESIDENT OF VILLAGE
.
& P.O.MILLAH, TEHSIL
SHILLAI, DISTRICT
SIRMOUR (H.P.),
PRESENTLY WORKING
AS JR. ASSISTANT AT
GSSSMILLAH, DISTRICT
SIRMOUR (H.P.).
4. SMT. SUDESH KUMARI,
AGE 49 YEARS, W/O SH.
MAHAVIR SINGH,
RESIDENT OF VILLAGE
KANGO, P.O. SOLDING,
TEHSIL NICHAR,
DISTRICT KINNAUR
(H.P.), PRESENTLY
WORKING AS JR.
ASSISTANT AT GSSS
NICHAR, DISTRICT
KINNAUR (H.P.).
....PETITIONERS.
(BY MR. ADARSH K. VASHISTA, ADVOCATE)
AND
1. STATE OF HIMACHAL
PRADESH THROUGH ITS
PRINCIPAL SECRETARY
(EDUCATION) TO THE
GOVT. OF HIMACHAL
PRADESH, SHIMLA
171002 (H.P.).
2. DIRECTOR, ELEMENTARY
EDUCATION, LALPANI,
SHIMLA171001 (H.P.).
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3. DEPUTY DIRECTOR,
.
ELEMENTARY
EDUCATION, SIRMOUR
DISTRICT, NAHAN (H.P.).
4. DEPUTY DIRECTOR,
ELEMENTARY
EDUCATION, SOLAN,
DISTRICT SOLAN (H.P.).
5. DEPUTY DIRECTOR,
ELEMENTARY
EDUCATION, KINNAUR AT
RECONG PEO, DISTRICT
KINNAUR (H.P.).
6. THE MANAGING
DIRECTOR, H.P. STATE
FOREST CORPORATION,
SDA COMPLEX, SHIMLA
171009 (H.P.).
....RESPONDENTS.
(M/S DINESH THAKUR AND SANJEEV SOD, ADDITIONAL
ADVOCATES GENERAL, FOR RESPONDENTS NO.1 TO 5
STATE)
(NONE FOR RESPONDENT NO.6)
Whether approved for reporting?1 No
This petition coming on for hearing this day, the Court passed the following:
JUDGMENT
By way of the present Writ Petition, the petitioners have
prayed for the following reliefs:
"i) That a writ in the nature of certiorari may kindly be
issued for quashing and setting aside the impugned
action on the part of Respondents whereby the
Respondents have refixed the pay of the petitioners and
have ordered recovery against the petitioners.
ii) That a writ in the nature of mandamus may kindly be
.
issued against the Respondents and in favour of the
Petitioners directing the Respondents to grant and allow
the pay band of Rs.1030034800 alongwith Grade Pay
of Rs.3200 in favour of the Petitioners after 2 years of
regular service as per the H.P. Civil Services (category
wise/postwise Amended Pay) Rules, 2012, alongwith
all consequential benefits and the Respondents may
kindly be directed to refund the recovery already made
from the Petitioners."
2. Learned counsel for the petitioners has submitted that
the impugned orders, which are appended with the petition as
Annexure P5 (Colly), are otherwise not sustainable in the eyes of
law as the same have been passed by the respondentDepartment at
the back of the petitioners without giving the petitioners any
opportunity of being heard.
3. Learned Additional Advocate General has defended the
impugned orders, on the ground that as the petitioners have failed to
qualify the typing test, therefore, their pay has been rightly refixed
and the same called for no hearing etc.
4. When this matter was listed before this Court on
06.04.2022, the following order was passed:
"One of the grievances of the petitioners is that
Annexure5 (Colly.) vide which, their pays were revised
resulting in deduction of the pay being received by them
as also recovery of alleged excessive payments made to
.
them, were issued at their back without adhering to the
principles of natural justice.
Learned counsel for the petitioners has submitted that it
is settled law of the land that no order which has civil
consequences can be passed at the back of the person
and here the office orders which are under challenge
have been passed at the back of the petitioners without
realizing that the same have grave civil consequences as
far as petitioners are concerned.
Learned Additional Advocate General submits that
before the matter is heard any further, let him have
appropriate instructions as to whether the petitioners
were heard before the issuance of office orders under
challenge or not.
As prayed for, list on 18.05.2022, on which date the
learned Additional Advocate General to have
appropriate instructions."
5. Today, learned Additional Advocate General by relying
upon the instructions imparted to the office of learned Advocate
General, dated 12.10.2022, by the office of Director of Higher
Education, to the Government of Himachal Pradesh, has apprised
the Court that the Office Orders, which stand assailed by way of
present Writ Petition, have been passed by the Department in terms
of the instructions contained in Handbook on Personnel Matter
VolI, under Section 17.1.8 (ii)(a) &(b) of Chapter 17 thereof, which
are to the effect that an incumbent who does not passes the type test
.
at the prescribed speed within one year, will not be allowed any
annual increment and first increment would be allowed to such
incumbent after one year service or the date of passing of the typing
test, whichever is later. By placing reliance thereupon, he has
submitted that in view of the above instructions, the pay of the
petitioners has been correctly refixed and recovery has been rightly
reordered and no personal hearing was given to the petitioners at
the time of pay fixation and further, recovery of amount was made
by the concerned DDO.
6. Having heard learned counsel for the petitioners as well
as learned Additional Advocate General and taking into
consideration the instructions which have been imparted to the
office of learned Advocate General, this Court is of the considered
view that as the impugned act of the respondentState, in terms
whereof, the pay of the petitioners has been refixed to their
deterrent and recovery has also been ordered, has civil
consequences as far as the petitioners are concerned, therefore, the
minimum requirement of law was that before the said orders were
passed, the principles of natural justice ought to have been adhered
to and a Show Cause Notice ought to have been issued to the
petitioners.
7. Accordingly, this Writ Petition is disposed of with the
.
direction that the office orders, which stand impugned by way of the
present Writ Petition, i.e. Annexure P5 (Colly), are ordered to be
quashed and the respondents are given an opportunity to issue a
Show Cause Notice to the petitioners, as to why their pay be not
refixed/recoveries be not affected from them. In the event of any
such Show Cause Notice being issued to the petitioners within a
period of six weeks from today, the same be replied by the
petitioners within a period of four weeks as from the date of receipt
of the Show Cause Notice and thereafter, the appropriate authority
may pass orders thereupon after giving an opportunity of being
heard to the petitioners.
8. Pending miscellaneous applications, if any, also stand
disposed of.
(Ajay Mohan Goel)
Judge
October 21, 2022
(Rishi)
