Allahabad High Court
State Of U.P. Thru Prin. Secy. Deptt Of ... vs Jagdish Prasad Shukla on 16 November, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 235 of 2022 Appellant :- State Of U.P. Thru Prin. Secy. Deptt Of Rural Development Govt Of U.P. Lko And 3 Others Respondent :- Jagdish Prasad Shukla Counsel for Appellant :- C.S.C. Counsel for Respondent :- Badrish Kumar Tripathi Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Lavania,J.
Heard learned State counsel for the appellants and learned counsel for the respondent-petitioner.
By means of this Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, the appellants have challenged the judgment and order dated 18.11.2021 passed by learned Single Judge in Writ Petition No. 23029 (S/S) of 2020 (Jagdish Prasad Shukla v. State of U.P. and others), whereby, the learned Single Judge allowed the writ petition and quashed the orders impugned therein dated 15.05.2020, 23.06.2020 and 21.07.2020 and directed the opposite parties to refund the amount, if realised/recovered from retiral dues of the petitioner, within a period of three months from the date of submission of certified copy of the order before the opposite party concerned.
Learned State counsel appearing on behalf of appellants while assailing/impeaching the judgment, under appeal, submitted that while passing the judgment and order dated 18.11.2021, thereby, interfering in the orders impugned in the writ petition dated 15.05.2020 (order of recovery of excess amount paid to the petitioner), 23.06.2020 (order indicating the error in fixation of pay of the petitioner) and 21.07.2020 (order or recovery), the Writ Court did not give any finding with respect to any illegality or perversity in the orders impugned in the writ petition more particularly in relation to the order dated 23.06.2020, whereby, the error in fixation of pay of the petitioner was indicated by the Joint Director, Pension, Ayodhya Division, Ayodhya (opposite party No. 2 in the writ petition). He says that the learned Single Judge did not appreciate the judgment of Hon'ble Apex Court passed in the case of State of Punjab and other v. Rafiq Masih and others, in its true spirit, which is confined to the recovery aspect and do not bar re-fixation/correction of pay, if wrongly fixed.
He further says that the Writ Court while passing the judgment and order dated 18.11.2021 did not appreciate the fact that the pay-scale of the respondent-petitioner was wrongly fixed at his request vide order dated 29.06.2012 and hence, it cannot be said that the respondent-petitioner has no role in wrong fixation of pay and moreover, the respondent-petitioner vide his letter to the Block Development Officer concerned has requested to recover the excess amount from his gratuity as a result of re-fixation of pay, as such, the order of recovery of excess amount is justified, however, this aspect has not been dealt with in the order of Writ Court. The wrong fixation of pay can always be corrected or modified and this aspect has also not been considered in the order impugned in the present appeal.
Learned State counsel further says that para 2 of Government Order dated 30.09.2003 provides merger of post of Accounts Clerk into the post of Assistant Accountant w.e.f. 30.09.2022. Thus, the first promotional pay scale of Accountant in the pay scale of Rs. 5500-9000/- will be payable to the Accounts Clerk merged into the post of Assistant Accountant after 14 years of services and if 14 years of service is completed after 30.09.2003 on the post of Accounts Clerk, then the pay scale of Accountant in the pay scale of Rs. 5500-9000/- was payable from the date of the completion of 14 years.
In continuation to above, it is stated that the respondent-petitioner was initially appointed on the post of Junior Accounts Clerk and subsequently was promoted on the post of Accounts Clerk on 17.01.2000 which post was merged into the post of Assistant Accountant and being so he was entitled to higher pay scale of Rs. 4500-7000/- w.e.f. 30.09.2003 in terms of Government Order dated 26.04.2006. The respondent-petitioner was entitled for 1st A.C.P. (Assured Career Progression) after completion of 10 years of services as Accounts Clerk/Assistant Accountant i.e. 10 years from 17.01.2000, as such, he became entitled for 1st A.C.P. in Grade Pay of Rs. 4200/- on 17.01.2010 and thereafter, was entitled for 2nd A.C.P. after 16 years of service in Grade Pay of Rs. 4600/-. Thus, the respondent-petitioner was not entitled for Grade Pay of Rs. 4600/- prior to 17.01.2016, however, the same was erroneously provided to the respondent-petitioner w.e.f. 30.09.2011 under the Government Order dated 10.10.2011.
He also stated that aforesaid facts were specifically pleaded in the counter affidavit filed on behalf of opposite party Nos. 3 and 4, however, in the judgment and order dated 18.11.2021, there is no finding on re-fixation of pay of the respondent-petitioner.
Thus, for the reasons aforesaid, the Writ Court erred in law and fact both while allowing the writ petition and interfering in re-fixation of pay that too without recording any finding on re-fixation of pay as also on right to recover the excess amount.
At this stage, he drawn the attention of this Court on the averments made in paras 3, 4, 5, 6, 9, 11, 12, 13 and 14 of the counter affidavit, which are extracted hereinunder:-
"3. That the petitioner superannuated from the post of Accountant on 30.04.2020 from the Block Development Office, Harintinganj, District Ayodhya. It is further submitted that the District Development Officer, Ayodhya wrote letter on 29.04.2020 to the Block Development Officer, Harintinganj, Ayodhya mentioning therein that after amendment in pay fixation of the petitioner, the payment month April, 2020 may be paid to the petitioner as already, in pursuance of direction issued by Joint Director, Pension, Ayodhya Division, Ayodhya dated 16.9.2017, the letter has been written by the District Development Officer, Ayodhya on 29.12.2017 to the Block Development Officer, Harintinganj, Ayodhya, but he has not implemented the same.
4. That thereafter the Block Development Officer, Harintinganj, Ayodhya amended the payment order of the petitioner vide order dated 04.05.2020 and a recovery order has also been issued on 15.05.2020 for excess payment make to the petitioner i.e. Rs. 21875/- and the petitioner himself giving consent and deposit the aforesaid amount on 03.06.2020 vide Challan No 4901/01/F/30002 in State Bank of India, Bikapur, Ayodhya and thereafter the pension paper of the petitioner has been sent vide letter dated 04.06.2020 to the Additional Director Treasury and Pension, Ayodhya Region, Ayodhya.
5. That thereafter the Joint Director, Pension, Ayodhya Division Ayodhya vide his order dated 23.06.2020 made objection mentioning therein that the petitioner has been paid the pay scale and designation of Assistant Accountant w.e.f. 30.09.2003, as such, the pay scale Rs 4500-7000 has been payable to the petitioner w.e.f. 30.09.2003 and after promotion to the post of Accountant, the service of Assistant Accountant, the date of promotion i.e. 17.01.2020, the first Assured Career Progression were provided to the petitioner after completing 10 years services with grade pay Rs 4200/- and after completing 16 years services IInd Assured Career Progression has been sanctioned with grade pay of Rs 4600/-. It is further submitted that in this way prior to 16.01.2016, the petitioner is not entitled for pay grade Rs. 4600/- and required to submitted the pension paper after rectifying the aforesaid short coming.
6. That thereafter the petitioner pay fixation has been re-determined and on 01.01.2020, the petitioner salary has been fixed as Rs. 58,600/- and thereafter the order has been passed on 21.07.2020 for recovery of the excess payment of Rs. 4,42,495/- after adjusting the amount already deposited by the petitioner i.e. Rs. 21,875/-.
9. That the contents of para 3 of the writ petition as stated are incorrect, misleading hence denied, in reply thereto same, it is submitted that after forwarding the pension paper to the Additional Director, Treasury and Pension, Ayodhya, the Joint Director Pension, Ayodhya Division, Ayodhya vide order dated 23.06.2020 made objection, thereafter order dated 21.07.2020 has been passed by the opposite party No. 3. It is further submitted that a Government Order dated 30.09.2003 has been issued by the State Government, whereby the post of Junior Accountant Clerk declare a dying cadre and designated the post of Assistant Accountant. In pursuance of the Government order dated 26.04.2006, the pay scale of Assistant Accountant has been enhanced as Rs. 4500-7000, in place of pay scale Rs. 4000-6000 w.e.f. 01.04.2001, since the petitioner are merged on the post of Assistant Accountant on 30.09.2003 and as such petitioner is not entitled for enhanced payment w.e.f. 01.04.2001. It is also submitted that and as such the recovery order on 15.05.2020 has been passed and petitioner himself deposited the same amount, which proves that petitioner is agree. It is further submitted that the recovery order dated 21.07.2020 passed by the opposite parties rightly as petitioner is not entitled, the pay grade which he has been obtained is erroneous and petitioner is aware about this fact and he deliberately getting the excess payment. It is also submitted that no recovery has been made from the petitioner from his real dues for which he is entitled.
11. That the contents of para 5 of the writ petition as stated are incorrect, misleading hence denied, in reply thereto same, it is submitted that vide Government Order dated 03.09.2003, the post of Junior Accountant Clerk and Accountant clerk are merged into the Assistant Accountant. It is further submitted that the petitioner has promoted to the post of Accountants Clerk on 17.01.2000 and he is merged as an Assistant Accountant on 30.09.2003.
12. That the contents of para 6 of the writ petition as stated are incorrect, misleading hence denied, in reply thereto same, it is submitted that the petitioner has been promoted to the post of Accountant on 17.01.2000 and as such petitioner is paid time pay scale, which is not related to the merger of on the post of Assistant Accountant as the Government Order dated 30.09.2003 is a prospective a nature. It is further submitted that the pay scale of Assistant Accountant has been enhanced on 01.04.2001 and as such petitioner is not entitled for enhanced payment of the post of Assistant Accountant as on 01.04.2001 petitioner is not working on the post Assistant Accountant and he is entitled for enhanced payment w.e.f. the date of merger to the post of Assistant Accountant and as such the recovery order issued by the department is legal, just and proper.
13. That in reply to the contents of para 7 of the writ petition, it is submitted that the petitioner pay fixation has been done in pursuance of the Government order dated 05.11.2014, which is legal, just and proper.
14. That in reply to the contents of para 8 of the writ petition, it is submitted that the Government order dated 21.11.2016 has been issued in regard to different category of employees for determination of salaries and in regard to payment of other dues and from the Government order dated 21.11.2016. It is crystal clear that the person who obtained the pay scale due to wrong pay fixation for which they are liable to pay and in this regard same has been recovered/adjusted and as such, the recovery order has been issued against the petitioner. It is further submitted that the petitioner is aware this fact prior to his retirement that he is getting wrong pay fixation as he is not covered to Accountant Cadre at the relevant time."
Opposing the present appeal, Sri Badrish Kumar Tripathi, learned counsel for the respondent-petitioner stated that the judgment, under appeal, is based on the judgment of Hon'ble Apex Court passed in the case of Rafiq Masih (supra) and as per the law laid down therein, the excess amount paid to respondent-petitioner, who retired from Class-III post on 30.04.2020 i.e. prior to passing of impugned order, cannot be recovered. As such, keeping in view the same, the appeal is liable to be dismissed. However, on being asked, Sri Tripathi fairly stated that regarding error pointed out in fixation of pay in order dated 23.06.2020 and re-fixation, the Writ Court has not recorded any finding after considering the facts placed in this regard.
Thus, admitted position is that the Writ Court without considering and discussing the facts related to re-fixation and recording finding in this regard quashed the order dated 23.06.2020.
Considered the submissions advanced by learned counsel for the parties and perused the record.
At this stage, it would not be out of place to refer here that in our order dated 09.11.2022, we have already indicated that in regard to the issue of recovery from the petitioner, we are in agreement with the view of the Writ Court. As such, we are not interfering in the order of the Writ Court on this count and being so, no recovery shall be made by the appellants from the respondent-petitioner regarding excess amount paid to him and the direction of Writ Court to refund the amount would be completed within three months from today.
From the above stated facts and circumstances of the case including the statement of Sri Tripathi, it is evident that regarding error pointing out in fixation of pay in order dated 23.06.2020 and re-fixation the Writ Court has not recorded any finding after considering the facts placed in this regard. Thus, admitted position is that the Writ Court without considering and discussing the facts related to re-fixation and recording finding in this regard quashed the order dated 23.06.2020.
For the reasons aforesaid, we are of the view that the order of Writ Court is liable to be interfered with by this Court. Accordingly, the appeal is partly allowed. The judgment and order dated 18.11.2021 is set-aside to the extent it quashes the order dated 23.06.2020 and the matter is remanded back to the Writ Court for decision afresh on the issue of re-fixation of pay. It is for the purposes of fixation of pension and other retiral dues.
As the present case relates to a pensioner, we request the Writ Court/learned Single Judge to dispose of the writ petition as the earliest after permitting the State to file supplementary counter affidavit, as the same has been prayed for by the learned State counsel.
Order Date :- 16.11.2022/Arun/-