Allahabad High Court
Sub Inspector Hari Singh Tomar ( Retd.) vs State Of U.P. And 3 Others on 21 April, 2025
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:60125 Court No. - 4 Case :- WRIT - A No. - 17737 of 2021 Petitioner :- Sub Inspector Hari Singh Tomar ( Retd.) Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Hari Narayan Singh,Kailash Prakash Pandey Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
Heard Sri K.P.Pandey, learned counsel for the petitioner and learned Additional Chief Standing Counsel.
By means of present petition filed under Article 226 of the Constitution, petitioner who has retired as Sub-Inspector from respondent establishment on 31st January, 2020 has assailed the order dated 31st December, 2020 whereby not only re-fixation has been done from the previous date in his pay scale but even recovery was directed to be issued.
Three fold arguments have been advanced by learned counsel for the petitioner assailing the order impugned herein this petition:
(a). No notice much less a show cause was issued to the petitioner prior to passing of the order of re-fixation dated 31st December, 2020 inasmuch as earlier office of Senior Superintendent of Police, Ghaziabad had written to the then U.P. Police Headquarter, Allahabad on 25th March, 2020 holding that there was no mistake committed in the pay fixation of the present petitioner and hence no further correction was required in the pay-scale which had already been made applicable to the petitioner and yet respondents have proceeded to re-fix the pay w.e.f. 15.2.2004; and
(b) Re-fixation of salary of employee of the State establishment including Police Force could not be permissible in view of Government Order dated 16.01.2007 beyond maximum period of 34 months back from the date of retirement and since petitioner belonged to Police Establishment, it being Government establishment, Government Order is fully applicable and respondents have proceeded to re-fix the pay scale of the petitioner prior to 15 years from the date of retirement.
(c)Yet another argument has been advanced by learned counsel for the petitioner is that in view of judgment in the case of State Of Punjab & Ors vs Rafiq Masih (White Washer), 2015 (4) SCC 334, no recovery could have been ordered from the salary of Class III employee after his retirement.
A counter affidavit has been filed in the matter and it has been averred in paragraphs 5,6 and 7 that wrongful pay fixation was done in the matter of pay-scale of the petitioner as petitioner was not entitled to relevant pay grade that was awarded to him on 15th February, 2004 and hence mistake has rightly been corrected and fixation is also absolutely justified. It is, however, nowhere stated in the entire counter affidavit that petitioner has at all been responsible for such alleged wrongful pay fixation at any point of time or that he ever represented the matter before the authority for particular pay fixation.
Having heard learned counsel for the parties and perused the records, I find a letter of the Police Headquarter Lucknow to Senior Superintendent of Police, Ghaziabad dated 27th February, 2020 that has been brought on record, which shows that there was some doubt raised regarding benefit given to the petitioner of 24 years of service of petitioner as on 25th February, 2021, however, in reply thereto Senior Superintendent of Police wrote a letter on 25th March, 2020, but I find that the order dated 22nd September, 2020 by which pay fixation has been re-revised. In the circumstances, petitioner at least deserved an opportunity to offer explanation to defend the alleged wrongful pay fixation. Thus, consequential order accordingly came to be ordered on 31st December, 2020, in violation of principles of natural justice. This order is also under challenge.
In the considered view of the Court, once pay scale of employee sought to be corrected on account of alleged fact that some wrongful pay fixation might have taken place for some confusion or deliberate act then in these circumstances authority shall have to take recourse to the procedure prescribed for and have also to follow the Government Order or circular issued from time to time by the State Government. In the present case, the correction is sought to be made w.e.f. 2004 and yet Government Order dated 16.01.2007 has not been taken into consideration, which absolutely bars such correction prior to 34 months of the date of retirement of the employee. Thus government order has been further interpreted by Supreme Court in the case of Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and Others, 2014 (16) SCC 444, in which vide paragraph 11, the Court has held thus:
"11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant."
Admittedly, petitioner stood retired in January, 2020 and correction took place on 31st December, 2020 that too w.e.f. 2024, therefore, it was clearly hit by Government Order that bars such correction in the pay fixation. Besides this, I find that no notice much less a show cause was issued as recitals are absolutely silent both in the order of re-fixation of pay on 22nd September, 2020 and consequential order passed on 31st December, 2020 . Thus both orders are held to be absolutely untenable.
In the case of Rafiq Masih (supra), Supreme Court has very clearly held vide paragraph 14 that no recovery as such could have been ordered for its post retirement dues in the event he has not been guilty for the alleged pay scale. In the entire counter affidavit, since there is no averment that petitioner was not at all responsible for the alleged wrongful pay fixation, therefore, judgment in the case of State of Punjab and Others (supra) would apply to the facts of the present case as well.
In view of above, on both the counts of pay fixation having taken place beyond period of 34 months from the date of retirments of the petitioner as well as consequential recovery being violation of principles of natural justice and against the law laid down by the Supreme Court inState Of Punjab & Ors vs Rafiq Masih (supra) the impugned orders are liable to be set aside.
Petition succeeds and is allowed accordingly. The order dated 22.09.2020 passed by respondent no. 3 and order dated 31.12.2020 passed by Deputy Superintendent of Police (Accounts) DDO Ghaziabad, are hereby quashed.
Consequences to follow.
Order Date :- 21.4.2025 Sanjeev