JUDGMENT Vineet Saran, J.
1. The petitioner was appointed as Tax Collector in the Municipal Board, Kalpi, District Jalaun on 14.3.1970. He was thereafter promoted as Tax Clerk vide order dated 30.10.1975 of the Chairman of the Municipal Board, Kalpi and in pursuance thereof he joined as Tax Clerk on the same day. Subsequently, on 9.7.1976, the petitioner was suspended. However, he was reinstated back in service on 1.7.1989 after having been absolved of the charges levelled against him. By the order of reinstatement dated 1.7.1989, the petitioner was however taken back in service on the post of Tax Collector and not as Tax Clerk. The petitioner thereafter filed several representations for being reinstated as Tax Clerk but no decision was taken by the respondents on the same. Vide order dated 1.3.1992, the petitioner was again promoted as Tax Clerk. On the very next date i.e., 2.3.1992, the petitioner again submitted a representation claiming that his promotion ought to be in continuity with effect from 30.10.1975. He then filed a writ petition which was disposed of by this Court vide order dated 24.8.1993 with a direction that the representation of the petitioner dated 2.3.1992 be decided within two months. The Chairman of the Municipal Board vide its order dated 14.9.1993 allowed the representation of the petitioner after recording a categorical finding that the petitioner had been promoted as Tax Clerk on 30.10.1975 and the subsequent order of promotion dated 1.3.1992 was thus, cancelled. However, it was stated in the order that because of the poor financial condition of the Municipal Board, the difference in salary of Tax Collector and Tax Clerk from 30.10.1975 till date would not be payable. The direction for placing the petitioner in the salary scale of Tax Clerk was, thus, given from the date of the passing of the order.
2. Thereafter on 25.3.1994, the Sub-Divisional Magistrate/Officer Incharge, Municipal Board, Kalpi passed another order after obtaining reports from the Executive Engineer, Municipal Board, Kalpi. By the said order the earlier order dated 14.9.1993, passed by the Chairman, Municipal Board had been reviewed and modified and it was held that the petitioner would be deemed to be working as Tax Collector and not as Tax Clerk. Although, in the operative portion of the said order dated 25.3.1994, it is stated that the earlier order dated 14.9.1993 was being modified but on perusal of the subsequent order it is clear that the earlier order dated 14.9.1993 had been virtually set-aside and the findings recorded in favour of the petitioner and the benefits granted to him had been recalled. The petitioner has, thus, filed this writ petition challenging the order dated 25.3.1994 passed by the Officer Incharge, Municipal Board, Kalpi and also for quashing the condition in the order dated 14.9.1993 passed by the Chairman, Municipal Board, Kalpi whereby the claim of salary on the post of Tax Clerk with effect from 30.10.1975 had been disallowed on the ground of paucity of funds. A further prayer has also been made for a direction to the respondents not to interfere in the working of the petitioner as Tax Clerk and to continue to pay salary and other benefits on the post of Tax Clerk in accordance with law.
3. I have heard Sri Shesh Kumar, learned Counsel appearing for the petitioner as well as Sri Prem Chandra, learned Counsel appearing for the respondents and have also perused the record.
4. In Paragraph 2 of the writ petition it has been categorically stated that the petitioner was promoted on the post of Tax Clerk vide order dated 30.10.1975 (Annexure-2 to the writ petition) and on the same day the petitioner joined on such post (Annexure 2-A to the writ petition). In reply, in Paragraph 15 of the counter-affidavit it has merely been stated that the order dated 30.10.1975 was wholly illegal as there was no vacancy on the post of Tax Clerk. The issuance of the order dated 30.10.1975 as well as the joining report of the same date has not been denied in counter-affidavit. The respondents have also not been able to justify the passing of the subsequent order dated 25.3.1994 whereby the earlier order dated 14.9.1993 has been unilaterally recalled by the Officer Incharge. Admittedly, certain benefits had accrued in favour of the petitioner by the order dated 14.9.1993 which could not have been recalled or reviewed without affording opportunity of hearing to the petitioner. Specific averments to this effect that no opportunity had been afforded, and that the order dated 25.3.1994 had been passed in gross violation of principles of natural justice, have been made in Paragraphs 20 and 21 of the writ petition. In Paragraph 26 of the counter-affidavit it has been admitted that the said order had been passed without issuing notice to the petitioner.
5. It is a well-settled principle of law that an order by which a person acquires certain rights cannot be recalled or reviewed without affording opportunity and without following the principles of natural justice. Even otherwise by the subsequent order the Officer Incharge, Municipal Board, Kalpi has not at all considered the fact of promotion of the petitioner with effect from 30.10.1975. He has only considered the subsequent promotion dated 1.3.1992 which had already been set-aside by the Chairman, Municipal Board, Kalpi on 14.9.1993 after holding that the petitioner had already been promoted as Tax Clerk on 30.10.1975. In view of the above in my view the impugned order dated 25.3.1994 had been passed wrongly and illegally without any authority of law and is, thus, set-aside.
6. The condition in the earlier order dated 14.9.1993, that although the petitioner had been promoted with effect from 30.10.1975, but the difference in salary of Tax Collector and Tax Clerk would not be payable to the petitioner because of paucity of funds, is also not justified. Once, the Chairman of the Municipal Board, Kalpi had arrived at a finding that the petitioner was duly promoted as Tax Clerk on 30.10.1975, the petitioner would be entitled to salary on the post of Tax Clerk with effect from the date of his joining as Tax Clerk which was on 30.10.1975, vide Annexure 2-A to the writ petition and has not been denied by the respondents in their counter-affidavit. The petitioner is, thus, entitled for the difference of salary on the post of Tax Clerk and Tax Collector from the same date. Accordingly, the condition in the order dated 14.9.1993 regarding nonpayment of the difference of salary to the petitioner because of paucity of funds is set-aside. The petitioner shall be entitled to continue to work on the post of Tax Clerk and be paid his salary in accordance with law.
7. This writ petition is, thus, allowed. No order as to costs.