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Akbar Khan and 3 ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 72, 73, 148 and 149 of 1981
Judge
Reported in1983WLN(UC)96
AppellantAkbar Khan and 3 ors.
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredAjit Singh Brar v. State of Haryana
Excerpt:
.....which he has performed the duties. the doctrine of estoppel will apply with full force against the state government and it cannot be allowed to make a submission that the petitioners should not be paid the salary, perks and emoluments of the post on which they have worked.;writ allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of..........be convenient to dispose them of by this single judgment.2. the petitioner akbar khan (in s.b. civil writ petition no. 72 of 1981) was appointed semi permanent with effect from 31.1.71 vide order ex.1. similarly, petitioner manilal (in s.b. civil writ petition no. 148/81), la mi narain (in s.b. civil writ petition no. 149/81) and sokat ali (in s.b. civil writ petition no. 73/81) were declared as semi-permanent with effect from 31.5.70, 31.3.71 and 1.7.70 respectively, vide orders marked ex.1.3. the superintending engineer, vide his letter no. 7044 dated 7.9.77, addressed to the chief engineer, p.w.d., (b & r), rajasthan, jaipur, & requested that the fixation of other seven civil mistries is still to be done and he has supplied the required information vide his letter dated 26.5.77......
Judgment:

D.L. Mehta, J.

1. In all these four writ petitions, a common point is involved and, therefore, it will be convenient to dispose them of by this single judgment.

2. The petitioner Akbar khan (in S.B. Civil writ Petition No. 72 of 1981) was appointed semi permanent with effect from 31.1.71 vide order Ex.1. Similarly, petitioner Manilal (in S.B. Civil Writ Petition No. 148/81), La mi Narain (in S.B. Civil Writ Petition No. 149/81) and Sokat Ali (in S.B. Civil Writ Petition No. 73/81) were declared as semi-permanent with effect from 31.5.70, 31.3.71 and 1.7.70 respectively, vide orders marked Ex.1.

3. The Superintending Engineer, vide his letter No. 7044 dated 7.9.77, addressed to the Chief Engineer, P.W.D., (B & R), Rajasthan, Jaipur, & requested that the fixation of other seven Civil Mistries is still to be done and he has supplied the required information vide his letter dated 26.5.77. He has specifically mentioned in Ex. 3 (in the cases of Akbar knan, Shokat Ali & Laxmi Narain) and Ex.2 (in the case of Mani Lal)-

It is, however, again requested that all other 7 Misteries were appointed in the same pay scale and applicable for the post of Civil Misteries as done in the case of Mukata Narain Mathur.

The Labour Welfare Officer, P.W.D. (B&R;), Jaipur, vide his letter dated 28.1. 79 also made a similar request to the Chief Engineer.

4. In para 5 of their respective writ petitions, the petitioners have submitted that:

The case of the petitioner was amongst those seven mistries which were referred to the Respondent No. 4 and who decided the case as above. The typed copy of the letter dated the 25th January 1979 of the Labour Welfare Officer, Jaipur, is enclosed as....

On behalf of the State, reply has been filed and the submissions made in para 5 of the writ petitions have been admitted. Thus, the petitioners submit that on the basis of admission in para 5 it is an admitted position that the petitioners were Civil Mistries and were working as Civil Mistries and they have rightly been given the benefits of that post. They further submit in para 7 of their respective writ petitions:

That it is evident from the facts given above that the petitioner is semipermanent Civil Mistry and he is working as Civil Mistry with effect from 1.7.80 add the petitioner is still working as Civil Mistiy....

Learned Counsel for the petitioners submits that he has corrected the typographical mistake in the case of Sokat Ali (S.B.C.W.P. No. 73/81) and it has been mentioned therein as 1.7.70. He further prays that he should be allowed to correct the typographical error in the other writ petitions.

5. The State Government has filed replies and in reply to para 7 of the writ petitions, it has not been specifically denied that the petitioners were working as Civil Mistries at the relevant time. The petitioners have produced their respective transfer orders in the rejoinder to show that they have been transferred on the post of Civil Mistries from one place to other place on the very post of civil mistry and that they were holding the charge of a Civil Mistries and have worked as such.

6. The learned Deputy Government Advocate has submitted that it is because of clerical error that the petitioners happened to be declared as Civil Mistries and have been given the benefits of the post of Civil Mistries. He submits that the State Government has a right to correct the mistake and it does not fall within the purwiew of Article 311 of the Constitution of India.

7. The right to correct a mistake is an inherent right and it cannot be denied that the right exists in the State Government. I also agree with the submission made by the counsel for the State that Article 311 does not apply when there is a case of rectification of mistake,

8. The first question before me is whether a mistake of the nature where the opposite party is going to be adversely affected, can be rectified or corrected, without giving due opportunity of being heard. It is a settled law that the principle of audi alteram partem is applicable even in administrative matters. The learned Deputy Government Advocate submits that the petitioners had no right to hold the post & as such, the principle of audialteram partem does not apply. It is an admitted position from the documents produced by the petitioners that the petitioners have been transferred on the post of of Civil Mistries from 1 place to another on the very post of Civil Mistry. It is also an admitted position that the petitioners have been considered as Civil Mistries and consequential benefits, including the allowances and emoluments have been paid to the petitioners. The recovery of the amount which is said to be an excess amount, creates a right in the petitioners. The petitioners have categorically submitted that they have worked on the post of Civil Mistries and had been paid salary of the post of Civil Mistries. The State Government is now recovering the amount from the petitioners on the ground that because of clerical error or otherwise, the amount has been paid and the petitioners have been treated as Civil Mistries though they were not eligible for that post. In such circumstances, it cannot be said that the petitioners are having no right what so ever. The right may be a disputed one, but for the purpose of considering the vested right, one has to look into the allegations made in the petitions. The principles of audi-alteram partem apply with full force even in administrative matters. It should be applied unless it is prohibited, directly or by implication, by any Jaw. If it has not so been prohibitted, and the rules of procedure are silent, then the principle of audi alteram partem applies with full force. It was obligatory on the part of the authorities to issue show cause notice before correcting the mistake which they considered to be a mistake. The petitioners had the right to make a submission that it was not a mistake, they could have also submitted some material before the authorities to convince them that it may not be a case of mistake at all. If the authorities can commit a mistake in treating the petitioners as Civil Mistries for years together they can also do the same while rectifying & for his purpose, the petitioners are having a right of being heard & the authorities were not justified in passing the orders dated 8.9.80 without hearing the petitioners. It is rot a case correctly clerical error where notice may not be necessary. The learned Deputy Govt. Advocate submits that the impugned order was a consequential order which has been passed by the Superintending Engineer & he submits that this consequential order has been passed in the light of the order Ex. R2 dated 15.4.80. Ex.R2 is a D.O. letter which has been addressed by K. K.Sarin, Chief Engineer to L.N. Maheshwari Superintending Engineer. In this letter Ex.R2 general orders have been issued by the Chief Engineer and in consequence thereof, orders have been issued to the petitioners. So, the order which is under challenge, is Ex.5 (Ex. 4 in writ petition No. 148/81) which is the roal order. It has been mentioned specifically by the petitioners in para 7 that they were working on the post of Civil Mistries and they performed the duties of Civil Mistries. This fact has not been denied by the State in the replies specifically. It is a settled 1 am that the person who has performed the duties, is entitled for the emoluments and perks of the post on which he has performed the duties. The doctrine of estoppel will apply with full force against the State Government and it cannot be allowed to make a submission that the petitioners should not be paid the salary, perkes and emoluments of the post on which they have worked. I am fortified in my view by the decision of this Court reported in Dr. Smyambar Prasad Sudarnia v. State of Rajasthan 1971 RLW 397. In this case, it has been held:

It is however clarified that nothing in this judgment is meant to prejudice the receipt of higher emoluments by respondent No.2 during the period he worked as Lecturer.

In the Chief Engineer Rajasthan Ground Water Board Jodhpur and Anr. v. The Industrial Tribunal, Jaipur and Anr. (1980 WLN (UC) 26), has been held:

I have already found above that payment of difference of wages of Blaster and Borer for the period April 30, 1938 to April 20, 1961 cannot be said to be in excess of jurisdiction and as the learned Deputy Government Advocate could not show that this has caused grave miscarriage of justice it will not be proper for me to quash the direction relating to payment of wages for the period April 30, 1958 to April 20, 1961 when respondent No.2 was ordered to work as Incharge Pipar Unit and was required to perform duties of Blaster, particularly when the award in this regared is challenged after the lapse of three years from the date of making.

In the case of Ajit Singh Brar v. State of Haryana 1916 (1) SLR 746, it has been held:

Apart from the constitutional provisions the rules of natural justice also required that before reducing the petitioner to a lower pay-scale and ordering him to refund, the alleged over payment with retrospective effect, an opportunity ought to have been afforded to him to show cause against the proposed reduction or cut in his pay. In M.L. Chopra's case (1967 SLR 688), it was laid down by Narula, J. that once a certain protection or benefit had been afforded to the petitioner, he was certainly entitled to be heard and afforded adequate opportunity to show cause against his being deprived of the same benefit, particularly with retrospective effect. Such notice is necessary in order to conform to the principles of natural justice enshrined in Article 14 of the Constitution which guarantees rule of law. If I may say so with respect, the ratio of M. L. Chopra's case applies with greater force to the facts of the case before me because the impugned action is being taken against the petitioner under the guise of an old order, dated 24.6.1974, of the Punjab Government, which at first remained inert and in abeyance and was, by implication, subsequently withdrawn by the order, dated 1.9.1966 of the same Government.

Thus, I hold that the petitioners are entitled for the emoluments as Civil Mistries during the period they worked as Civil Mistries and the State is not competent to make recovery from them.

9. In the result, the writ petitions are alowed. Anx.3 order in writ petitions. Nos. 72/81 and 149/81 and Anx.4 order in writ petition No. 148/81 is set aside. The State Government is prohibited from making any recovery from the petitioners on account of the excess payment on the grounds mentioned therein, if the petitioners have worked on the post of Civil Mist-ries during the relevant period.

10. The State Government will be at liberty to correct or rectify a mistake, it they so choose, after following the principles of audi alteram partem.

11. The learned Deputy Government Advocate submits that at present, the petitioners are working as Road Mistries. If it is so, the petitioners shall continue to work on the post on which they are working, without prejudice to the order passed by this Court. However the matter will be re-examined on the basis of the directions issued by this court & necessary consequences will follow.


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