B.K. Sharma, J.
1. The petitioner, an employee of the Food Corporation of India, is aggrieved by the proposal mooted for recovery of the amount drawn by him pursuant to the granting of selection grade scale to him. The impugned action is sought to be taken after about 10 years of granting the selection grade scale to the petitioner.
2. The petitioner while was serving as Assistant Grade-II in the scale of Rs. 1650-2655/- was placed in the selection grade scale of pay of Rs. 1825-3430/- by Annexure-1 office order dated 02.12.1994. Consequent upon such order placing the petitioner in selection grade, his pay was re-fixed by Annexure-2 order dated 07.03.1995. The petitioner continued in the selection grade till December, 2001 when he was promoted as Assistant Grade-I(D) with effect from 02.02.2001.
3. By the impugned order dated 25.07.2003 (Annexure-3 to the writ petition), it was conveyed that the petitioner was not eligible for the selection grade scale and that his name was wrongly included in the seniority list and the order by which he was provided with the selection grade scale. By the said order, the selection grade scale provided to the petitioner way back in 1994 having been withdrawn with further order to recover the amount already paid to the petitioner, the petitioner felt aggrieved and filed the instant writ petition. This Court while entertaining the writ petition by order dated 26.08.2003 was inclined to stay the proposed recovery, as indicated in the impugned order dated 25.07.2003.
4. The respondents have filed their affidavit-in-opposition. According to them, the petitioner was not eligible for placement in selection grade scale and in fact, it was another person with the same name like that of the petitioner, who was entitled to get the benefit of selection grade scale. It has been contended that in fact the order pertaining to granting of selection grade was made for the other person and not for the petitioner. They have identified the said person and the petitioner by name as Moinuddin-1 and Moinuddin-2 respectively. Be it stated here that in the order of granting selection grade scale, there was no such indication and the person was indicated simply as Moinuddin Ahmed.
5. According to the petitioner, if there was any mistake, same was on the part of the Vigilance Department. The respondents have contended that the benefit of selection grade scale was wrongly given to the petitioner and upon detection of the same, the wrong committed was corrected and consequently, it is the other Moinuddin-1 who has been conferred with the benefit. According to them, as a consequence thereof, the payment already made to the petitioner, is to be recovered.
6. I have heard Mr. H. Rahman, learned Counsel for the petitioner as well as Mr. P.K. Roy, learned Standing Counsel, Food Corporation of India. Mr. Rahman, learned Counsel for the petitioner submits that there being no overt act on the part of the petitioner in getting the selection grade scale and it being the bonafide action on the part of the petitioner to obey the order placing him in the selection grade scale, the proposed action, as contemplated in the impugned order dated 25.07.2003 is not sustainable. In support of the submission, he has placed reliance on the decision of the Apex Court as reported as reported in (1995) Supp 1 SCC 18 (Sahib Ram v. State of Haryana). He has also placed reliance on the decision of this Court as reported in (2007) 4 GLT 922 (Safior Rahman v. Union of India and Ors.).
7. Mr. Roy, learned Standing Counsel, F.C.I., on the other hand, submits that since the petitioner was aware that he was not within the zone of consideration to earn the selection grade scale, he ought not to have accepted the same. According to him, since there was contributory negligence on the part of the petitioner, the proposed recovery is justified.
8. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also gone through the materials on record.
9. There is no dispute that before passing the impugned order dated 25.07.2003 and/or ordering to recover the amount drawn by the petitioner; he was not put to any kind of notice to have his say in the matter. The Apex Court in the case of Divisional Superintendent Eastern Railway v. L.N. Keand reported in : (1974)IILLJ372SC observed that the authority could not have reduced the scale of pay without any opportunity to the person concerned of being heard. Similarly, in the case of Bhagwan Shukla v. Union of India reported in : (1995)IILLJ726SC , the Apex Court under similar situation, in which the basic pay of the appellant was reduced with retrospective effect, that too without any notice, held that there was flagrant violation of the principles of natural justice, in which the appellant was made to suffer huge financial loss without being heard. It was observed that the fairplay in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting him to notice and giving him a hearing in the matter.
10. In the instant case, admittedly, the petitioner was not put to any kind of notice before issuance of the impugned order dated 25.07.2003 and, more particularly, in ordering recovery from his pay, the amount already drawn pursuant to his placement in the selection grade scale way back in 1994. The benefit which he was enjoying for long 10 years was sought to be withdrawn with further order of recovery without providing any opportunity of being heard. In Sahib Ram (supra), the Apex Court under somewhat similar circumstances having found the appellant being not at fault towards receiving the benefit of higher pay scale, held that no fault could be attributed to him. It was observed that in such a situation, no recovery can be made from the appellant. Paragraph 5 of the judgment reads as follows:
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.
11. In the case of Safior Rahman (supra) also this Court under somewhat similar circumstances found fault with the authority in proposing to recover the amount from the salary of the petitioners involved in the said case. It was found that there was no misrepresentation on the part of the petitioners as in the instant case. Consequently, the proposed action for recovery of the amount has been interfered with.
12. There is nothing on record to show that there was any misrepresentation on the part of the petitioner or any other overt act on his part in getting the selection grade scale. As noticed above, the order dated 02.02.1994 by which the selection grade scale was provided, there was no indication that the same was meant for Moinuddin-1. Only the name of Moinuddin Ahmed was indicated. By the said order, the person concerned was also posted elsewhere i.e. Tezpur. The petitioner, in bonafide belief, carried out the order and there was no objection on the part of the respondents. That position continued till 2001 when he was given regular promotion. After two years thereafter, the impugned order was passed seeking to recover the amount which the petitioner had already drawn pursuant to his placement in the selection grade scale.
13. Since the petitioner was placed in the selection grade scale and he performed the duty thereto, it will be inappropriate for the respondents to recover the amount he has already drawn. I hasten to add that the same will not disentitle the other Moinuddin-1 to get the selection grade scale from the due date i.e. the date on which the petitioner was provided with the same.
14. Since in the meantime the petitioner has been promoted to the next higher grade i.e. Assistant Grade- I(D) and it is submitted at the Bar that the same is a regular promotion irrespective of selection grade scale, and even otherwise also, the selection grade scale already drawn by the petitioner need not be interfered with at this stage. In other words, there will be no recovery of the amount which the petitioner has already drawn on being placed, may be wrongly, in the selection grade scale.
15. For-the foregoing reasons, conclusions and decision, this writ petition is allowed with the direction that the respondent-Corporation shall not make any recovery of the amount from the salary of the petitioner on account of passing of the impugned order dated 25.07.2003 (Annexure-3 to the writ petition). In other words, the proposed recovery, as contemplated in the impugned order, is interfered with. However, it is made clear that the benefit to which the other Moinuddin i.e. Moinuddin-1 is entitled to, shall not be interfered with and the respondent-Corporation shall provide him with the said benefit of selection grade scale from the due date. Writ petition is allowed to the extent indicated above leaving the parties to bear their own costs.