Allahabad High Court
Yadunath vs State Of U.P. Thru. Its Prin. Secy. ... on 6 August, 2021
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 8 Case :- SERVICE SINGLE No. - 6736 of 2015 Petitioner :- Yadunath Respondent :- State Of U.P. Thru. Its Prin. Secy. Irrigation Deptt. & Ors. Counsel for Petitioner :- Rahul Srivastava,Ramdeo Tripathi,Suresh Sharma Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali,J.
1. Heard learned counsel for the petitioner and Shri Awdhesh Kumar Pathak, learned State Law Officer appearing for the respondents-State.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs:
i) issue a writ, order or direction in the nature of Certiorari quashing the order dated 28.10.2015 passed by opposite party no.3 contained as Annexure No.1 to the writ petition.
ii) issue a writ, order or direction in the nature of Certiorari quashing the order dated 7.8.2015 passed by opposite party no.4 contained as Annexure No.2 to the writ petition.
iii) issue a writ, order or direction in the nature of Mandamus commanding the opposite parties not to give effect to the impugned order dated 28.10.2015 and 7.8.2015 and benefit of ACP which was granted to the petitioner vide order dated 12.6.2015 the same may remain continued.
iv) issue any other appropriate writ, order or direction in favour of the petitioners as the Hon'ble Court may deem fit in the circumstances of the case;
v) award the costs of the petition to the petitioner.
3. It is the case of the petitioner that he was granted appointed on Class IV on daily wage basis in the year 1987. Thereafter, taking into consideration his work and conduct he was appointed as work-charge employee in the Department. On completion of almost 20 years of satisfactory services, the services of the petitioner was regurlized vide order dated 24.4.2006. The State Government issued a Government Order providing benefit of ACP on completion of 24 years' satisfactory service and as per the provisions contained in the Government Order, the petitioner was granted ACP vide order dated 12.6.2015 and thereafter on the basis of direction issued by the Finance Department, benefit of ACP provided to the petitioner has been cancelled by the Executive Engineer and recovery of the paid amount has been directed to be made from the impugned vide impugned order dated 28.10.2015.
4. Assailing the aforesaid order, submission of learned counsel for the petitioner is that prior to passing of the impugned order, no notice nor opportunity of hearing was provided to the petitioner. His next submission is that the work and conduct of the petitioner was taken into consideration along with the length of service and thereafter the benefit of ACP was provided to him, therefore the order of cancellation is arbitrary and is liable to be set aside by this Court. He next submits that the impugned order has been passed on the dictate of the Finance Department and Executive Engineer has not applied his own mind, therefore, the order is contrary to the law laid down by the Hon'ble Supreme Court in the case of Joint Action Committee of Air Line Pilots' Association of India (Alpai) and others v. Director General of Civil Aviation and others reported in (2011)5 Supreme Court Cases 435.
5. Learned counsel for the petitioner next submits that the claim of the petitioner of ACP has been rejected on the ground that the services rendered as work-charge employee will not be taken into consideration for reckoning the services for the purpose of A.C.P. He lastly submits that once the order was passed without application of mind the recovery proceedings initiated against the petitioner cannot be justified. In support of this his submission, he has placed reliance upon judgment of Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) reported in (2015)4 SCC 335.
6. Per contra, learned State Law Officer submits that the order impugned is just and valid order and does not suffer from infirmity and illegality. He next submits that the petitioner has not entitled for the relief as sought by means of the present writ petition. He has placed reliance upon a judgment dated 3.2.2017 rendered by Division Bench of this Court in Writ Petition No.20486 (MB) of 2016 wherein it has been held that for the grant of service benefits such as promotional pay scale/ financial upgradation under ACP Scheme, specified period of 'regular' satisfactory service is a pre-condition and since a workcharged service is not a regular service in regular establishment, the period of service spent by a person in workcharged establishment is not liable to be counted for the purpose of computing the qualifying service.
In rebuttal, learned counsel for the petitioner has placed reliance upon a judgment dated 2.9.2019 rendered by Hon'ble Supreme Court in Civil Appeal No.6798 of 2019 titled 'Prem Singh v. State of U.P. and others', whereby the judgment relied upon by learned State Law Officer was set aside and held that the services rendered as workcharge employee shall be reckoned for the purpose of qualifying services for the grant of pension.
7. I have considered the submissions advanced as well as law reports cited by the learned counsel for the parties and perused the material on record.
8. To resolve the controversy involved in the present writ petition, relevant portion of the judgments relied upon by learned counsel for the petitioner are being quoted below:
(i) Joint Action Committee of Air Line Pilots' Association of India (Alpai) (supra):
"26. The contention was raised before the High Court that the Circular dated 29.5.2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide: The Purtabpur Co., Ltd. v. Cane Commissioner of Bihar & Ors., AIR 1970 SC 1896; Chandrika Jha v. State of Bihar & Ors., AIR 1984 SC 322; Tarlochan Dev Sharma v. State of Punjab & Ors., AIR 2001 SC 2524; and Manohar Lal (D) by L.Rs. v. Ugrasen (D) by L.Rs. & Ors., AIR 2010 SC 2210).
27. Similar view has been re-iterated by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors., AIR 2004 SC 1159; and Pancham Chand & Ors. v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the Constitutional scheme.
28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."
(ii) Rafiq Masih (supra):
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 herein above, 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."
9. In the case of Joint Action Committee of Air Line Pilots' Association of India (Alpai) (supra), the appellants are the Joint Action Committee of the Airlines Pilots' Association representing several airlines operating in Indi. The dispute relates to flight time and flight duty time limitation as there is some variance between the Aeronautical Information Circular no.28 of 1992 and CAr 2007; Vide AIC No.28/1992, FT and FDTL had been defined and fixed depending upon the distance of destination and number of landsing. The rest period for the pilots stood sustaintially changed by CAR 2007 to the greater benefit of the pilots; however a large number of representations had been made by the Airlines to DGCA and the Central Government, the respondents herein, to the effect that it was practically not possible for them to ensure compliance with CAR 2007 and thus the same kept in abeyance. By a subsequent order dated 2.6.2008, AIC No.28/1992 was revived. The Hon'ble Supreme Court while considering the aforesaid facts has held that if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal, and dismissed the appeal.
In the present case, after completion of 24 years of satisfactory service, the petitioner was granted ACP vide order dated 12.6.2015 and thereafter, vide order dated 28.10.2015, the Executive Engineer, Sarvekshan Evm Anusandhan Khand, Luckknow on the opinion of the Finance Controller cancelled the order dated 12.6.20215 granting the benefit of ACPS to the petitioner. In view of the above, the judgment rendered in the case of Joint Action Committee of Air Line Pilots' Association of India (Alpai) (supra) is fully applicable to the case of the present case.
10. In the case of Rafiq Masih (supra), the Hon'ble Supreme Court considered the issue of recovery directed in regard to payment made to an employee after retirement. After considering the claim setup, it was held that in case on the basis of fixation or otherwise payment has been released to the employee by mistake of the officer in respect of Class III and Class IV post, the recovery from the employee is not permissible in law.
In the present case, the petitioner was granted ACP vide order dated 12.6.20215 after completion of 24 years of satisfactory service and thereafter, vide order dated 28.10.2015, order in regarding providing ACP has been cancelled and recovery of the amount which was paid in excess has been directed to be made from the petitioner. In view of the above, the judgment rendered in the case of Rafiq Masih (supra) is fully applicable to the present facts and circumstances of the case.
11. In regard to the judgment of Civil Appeal No.6798 of 2019 relied upon by learned State Law Officer is not applicable to the present facts and circumstances of the case.
12. Considering in totality of facts and circumstances of the case and ratio of judgments relied by learned counsel for the parties, the order impugned order 28.10.2015 passed by respondent no.3 cannot be sustained and is hereby set aside. The matter is remitted back to authority concerned to examine the matter afresh and pass appropriate order keeping in view of the principles laid down by the Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) within a period of three months from the date of production of a certified copy of this order.
13. In the result, the writ petition is disposed of.
Order Date :- 6.8.2021 GK Sinha