Allahabad High Court
S.I. Rajesh Prasad Yadav And Another vs State Of U.P. And Others on 5 December, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Court No. - 5 Case :- WRIT - A No. - 38530 of 2011 Petitioner :- S.I. Rajesh Prasad Yadav And Another Respondent :- State of U.P. and Others Counsel for Petitioner :- P.K.Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
List revised. Case called out.
None appears on behalf of the petitioners to press this writ petition.
Sri Girish Vishwakarma, learned standing counsel is present for the State respondents.
The impugned order of recovery dated 23.5.2011 has been passed by the respondent no. 4 on the ground of wrong fixation of pay scale of the petitioners. In the impugned order, there is no allegation that wrong fixation of pay scale was the result of any fault of the petitioners.
On 19.7.2019, this Court passed the following interim order:-
"Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents.
It is contended that order to recover a sum of Rs.43,830/- in instalment of Rs.4830/- per month from the salary of the petitioners on account of wrong fixation of salary by the respondents themselves is not permissible as there was no element of fraud or misrepresentation on the part of the petitioner. Reliance in support of the contention has been placed on a judgment of learned single Judge in the case of Babu Ram vs. State of U.P. & others [(2010) 1 UPLBEC 614 in which relying upon the judgment of Hon'ble Apex Court in the case of Shyam Babu Sharma and others v. Union of India & others, (1994) 2 SCC 521 it has been held that if higher pay scale is erroneously given to an incumbent and he has received higher pay scale due to no fault of his, it shall be just and proper not to recover any excess amount already paid to him.
Prima-facie from a perusal of record, there appears to be force in the submission and the matter requires scrutiny.
Learned Standing Counsel may file counter affidavit within six weeks.
Petitioner will have three weeks thereafter for filing rejoinder affidavit.
List for admission after expiry of the aforesaid period.
Considering the facts, until further orders of this Court, no recovery from the salary of the petitioners of the alleged excess amount paid to them in pursuance of the impugned order shall be made."
Despite the specific reason mentioned in the aforequoted interim order for grant of interim relief, the respondents have not even alleged in their counter affidavit that wrong fixation of pay scale of the petitioners was either the result of any fault of the petitioners or it was on account of any fraud.
Under the circumstances, the impugned order dated 23.5.2011 cannot be sustained and is hereby quashed. The writ petition is allowed.
Order Date :- 5.12.2019 Arif