Allahabad High Court
Ram Avtar Singh Yadav vs State Of U.P. And 2 Ors. on 2 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 176
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 45552 of 2013 Petitioner :- Ram Avtar Singh Yadav Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Dr. Rajesh Kr. Srivastav Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an endorsement contained in the communication dated 24.07.2013, as also an order dated 29.07.2013, contained in Annexure No.2 to the writ petition. By these orders the authorities have redetermined petitioner's pay scale and the benefit of additional increment, granted earlier, for the period 1988 to 1991 has been withdrawn.
It appears that petitioner's name was forwarded by the District Employment Exchange, Rampur, to the office of District Development Officer, Rampur pursuant to which he was offered appointment on the post of Jeep Driver vide order passed by the District Panchayat Raj Officer, Rampur on 30.05.1988. This order clearly contains a recital that salary and other benefits sanctioned by the Government from time to time would be admissible to petitioner but his salary and service benefits would be paid out of recovery charges of 5% admissible to the Panchayats towards commission. A further recital in the appointment letter of petitioner is that he is not a Government employee. Pursuant to this appointment the petitioner continued to serve in the Panchayat Department. Subsequently the petitioner was appointed in the Development Department of the State after he was relived from the District Panchayat on 08.01.1991. The issue raised in the petition is with regard to the status of petitioner between 30.05.1988 to 08.01.1991. Initially the authorities proceeded to treat this period as part of the petitioner's employment as that of a Government employee and he was granted service benefits including increment of pay etc. However, on 24.07.2013 the officer concerned passed an order in which it has been recorded that petitioner' services from 30.05.1988 to 07.01.1991 is not an appointment in the employment of State since his salary etc. was to be paid out of 5% commission amount admissible to the Panchayat and, therefore, such period cannot be counted towards service rendered by the petitioner to State. Consequential direction has been issued for effecting recovery etc. also.
While entertaining the writ petition, this Court on 04.09.2013 has already stayed the operation of the orders impugned. Counter affidavit has been filed on behalf of the respondents to which a rejoinder affidavit has also been filed. I have heard Dr. Rajesh Kumar Srivastav, learned counsel for the petitioner and learned Standing counsel for the respondents, and have perused the materials brought on record.
Short question that requires determination in the facts of the present case is as to whether petitioner's working from 30.05.1988 to 07.01.1991 is counted towards services rendered to the State or not?
The appointment letter dated 30.05.1988 is on record of the petition as Annexure No. 2. This document clearly records that petitioner would be entiled to salary and other allowance from the 5 % recovery charges that are admissible to the Panchayat and that his services are not to be treated as Government service. This specific recital contained in the appointment letter dated 30.05.1988 is not in dispute. Petitioner has not challenged this recital in the appointment order. Admittedly petitioner joined pursuant to it and has worked thereafter. He has been offered regular employment in the Development Department of the State only on 08.01.2011. The petitioner has not been able to demonstrate any provision in the applicable service rules or administrative instruction as per which the period of engagement from 30.05.1988 to 07.01.1991 could be treated as services rendered to the State. The authorities, therefore, cannot be said to have erred in declining the services rendered by the petitioner from 30.05.1988 to 07.01.1991 towards employment in the State.
The recital in the order of appointment dated 30.05.1988 that petitioner's salary etc. is to be paid from the commission amount payable to a Panchayat and that his services are not to be treated as employment in State would clearly be determinative of the status accorded to petitioner in the appointment letter. No interference with the orders impugned, accordingly, would be warranted inasmuch as the authorities have merely confined petitioner's service tenure from 08.01.1991 onwards for Government service.
It would however be worth noticing that monitory benefits have been granted to petitioner not on account any misrepresentation or fraud attributed to petitioner. Such benefits have been accorded to petitioner over a long period of time who is otherwise a lowly paid employee. It would, therefore, not be just to allow any recovery to be made from the petitioner particularly in view of the observation made by Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih and others (2015) 4 SCC 334. The observation of the Apex Court in that regard is reproduced hereinafter:-
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Aspects of equity, therefore, would clearly arise in favour of the petitioner and he would be entitled to limited protection so far as recovery is to be effected from the petitioner pursuant to the orders impugned. In that view of the matter, it is provided that no recovery would be made from the petitioner of the amounts that have already been paid pursuant to the orders impugned. Petitioner's salary and other service emoluments, however, would be determined treating his entry into Government service w.e.f. 08.01.1991. Petitioner's pending claim in respect of travelling allowance etc. shall also be addressed in accordance with law, expeditiously.
Order Date :- 2.1.2020 Abhishek Singh