# (2012) 1 ILRA 323

- **Citation:** (2012) 1 ILRA 323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-16
- **Case number:** Civil Misc. Writ Petition No. 15112 of 2002
- **Bench:** Rakesh Tiwari, Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2012-1-ilra-323-42127
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226Recovery of excess payment consequent
to cancellation of promotional paywithout
opportunity
of
hearing
to
petitioner-on ground the C.D.O. Was not
empowered-undisputed-that
petitioner
completed 14 years regular service-no
quarrel regarding entitlement of 1st P.P.
After completing 14 years Service-if
C.D.O. Not empowered commissioner
324 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ought to have rectified but cancellation
order-wholly
uncalled
for-order
impugned quashed with direction to pay
1st P.P. From the date of completion of
14 years service with full satisfaction.

Held: Para 14

Issuance of order for grant of Time pay
scale in pursuance of the G.O. dated
2.12.2000 was only formal and the
Commissioner if vested with power for
granting Time Pay Scale ought to have
ratified the order of the CDO instead of
cancelling
it
and
issuing
order
of
recovery which appears to be illegal on
face of it as the petitioner was not being
paid extra salary or any amount which
he was not entitled to receive the same,
therefore, recovery could not be made
from him.

## Text

1 All Vinod Kumar Sharma V. State of U.P. and others
323

In exercise of powers conferred by
sub-section 3 (ii), of Section 1 of the
Advocates Act, 1961 (25 of 1961), the
Central Government hereby appoints the
15th day of June, 2011 as the date on
which Section 30 of the said Act shall
come into force."

16. Number of cases cited by the
learned counsel for the petitioner, need
not be considered keeping in view the fact
that Union of India has issued notification
making Section 30 operative from the
15th day of June, 2011. Section 30 of the
Advocates Act confers on Advocates the
right to practise throughout the territories
to which the Act extends. Thus, in all
courts including Hon'ble Supreme Court,
Advocates have right to appear and
practise and represent the cause of
litigants. Under Clause (2) of Section 30,
the Advocates have got further right to
appear before any Tribunal or person
legally authorised to check the evidence.
Undoubtedly, the Lokayukta has got
power to take evidence keeping in view
the statutory provisions contained in the
Act. Accordingly, the Advocates have
right to appear before the Lokayukta in
view of the notification issued by the
Union of India (supra).

17. To the extent above, there
appears to be no room of doubt that in
view
of
the
notification
of
the
Government of India, the Advocates have
right to appear before the Lokayukta.
However, the appearance of Advocates
does not mean that the person against
whom the investigation is pending, has
got right to represent the cause only
through the counsel. The Lokayukta has
got right to call for and ensure personal
appearance of person against whom the
investigation is pending, and to pass
appropriate order in compliance of the
statutory provisions during the course of
investigation. However, the Lokayukta
may not restrain the Advocates from
appearing before him/her to contest the
cause
of
a
person
against
whom
investigation is pending under the Act.

18. To the extent as above, the writ
petition is allowed. Subject to the order
passed
by
the
Lokayukta
and
in
compliance of statutory provisions, the
petitioner may be represented by the
Advocate before the Lokayukta of the
State of U.P. during the pendency of
investigation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE DINESH GUPTA,J.

Civil Misc. Writ Petition No. 15112 of 2002

Vinod Kumar Sharma

 ...Petitioner
Versus
State
of
U.P.
Thru'
Secy.
Rural
Development and others ...Respondents

Counsel for the Petitioner:
Sri Anshu Chowdhary

Counsel for the Respondents:
Sri Yogendra Kumar Yadav
C.S.C.

Constitution
of
India,
Article
226Recovery of excess payment consequent
to cancellation of promotional paywithout
opportunity
of
hearing
to
petitioner-on ground the C.D.O. Was not
empowered-undisputed-that
petitioner
completed 14 years regular service-no
quarrel regarding entitlement of 1st P.P.
After completing 14 years Service-if
C.D.O. Not empowered commissioner
324 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ought to have rectified but cancellation
order-wholly
uncalled
for-order
impugned quashed with direction to pay
1st P.P. From the date of completion of
14 years service with full satisfaction.

Held: Para 14

Issuance of order for grant of Time pay
scale in pursuance of the G.O. dated
2.12.2000 was only formal and the
Commissioner if vested with power for
granting Time Pay Scale ought to have
ratified the order of the CDO instead of
cancelling
it
and
issuing
order
of
recovery which appears to be illegal on
face of it as the petitioner was not being
paid extra salary or any amount which
he was not entitled to receive the same,
therefore, recovery could not be made
from him.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Anshu Chaudhary,
learned counsel for the petitioner, Sri
Yogendra
Kumar
Yadav,
learned
Standing counsel on behalf of the State of
U.P. and perused the record.

2. This writ petition has been filed
for quashing the order dated 30th
March/1st April, 2002 and consequential
order
dated
4.4.2002
passed
by
respondent nos. 2 and 3 respectively.

3. The petitioner has prayed that the
respondents may be directed not to
recover alleged excess amount paid as
salary to him from his salary.

4. The writ petition has been
challenged on the ground that the
impugned order has been passed in utter
violation of principle of natural justice in
as much as no notice or opportunity
whatsoever was afforded to the petitioner
before passing of the impugned order; that
this order has been passed by ignoring the
law laid down by the Apex Court as well
as by this Court that once right accrues in
favour of an employee, it cannot be taken
away in such an arbitrary manner as has
been done by the authority by the order
impugned. It is stated that even if it is
alleged that the employee was not entitled
to it; even then the said order is against
the law as it is well settled principle of
law that the salary once paid to an
employee cannot be recovered unless it is
obtained by him by playing fraud or by
misrepresentation upon the employer.

5. It is submitted that in the present
case no such finding has been recorded by
respondent no.2 in the impugned order,
hence the amount paid to the petitioner in
view of the order dated 11.6.2001 cannot
be recovered and that in so far as the
Government Order dated 13th May, 1999
is concerned, the financial and executive
powers are vested in the Executive
Director in so far as District Rural
Development Agency, is concerned but as
he had not passed the order therefore, it
cannot be said to be bad on the ground
that he was not empowered to grant
promotional grade to the petitioner except
the Commission. Even otherwise, the
impugned orders are bad in law, arbitrary,
unjust and illegal.

6. The facts culled out from the
records in a nut-shell are that the
petitioner was initially appointed on
3.5.1986 as Investigator (Technical) by
the District Magistrate, Aligarh in District
Rural Development Agency (hereinafter
referred to as 'DRDA'). His services were
regularized vide order dated 11.2.1987.
However, on bifurcation of the District
Aligarh in the year 1997, a new District
namely, Hathras was carved out. On
1 All Vinod Kumar Sharma V. State of U.P. and others
325
account of creation of new District
Hathras, the petitioner was transferred on
the same post of Investigator (Technical)
by the District Magistrate, Aligarh vide
order dated 3rd July, 1998 to the District
of Hathras which he was holding in
District Aligarh.

7. By G.O. dated 2.12.2000 it was
provided that those employees who put in
8 years of continuous service would be
placed in Time Scale. This Government
order is appended as Annexure-3 to the
writ petition. In view of the fact that the
petitioner had completed 8 years of
service
he
was
granted
Time
Scale/Additional
Increments
by
the
Project Director vide his order dated 22nd
July, 1995. Since it was also provided in
the aforesaid Government order dated
2.12.2000 that those employees who were
in Time Scale under the Government
Order dated 8.3.1995 would be placed in
promotional pay scale on completion of
14 years satisfactory service. the Chief
Development Officer/Executive Director,
District Rural Development Agency,
respondent no.3, vide his order dated
16.3.2001. This order was subsequently
modified vide order dated 11.6.2001
granting promotional pay scale to the
petitioner w.e.f. 3.5.2000 in furtherance of
the Government order dated 10.4.2001.
Accordingly, the petitioner was given
promotional pay scale, which is the date
on which he had completed of 14 years
satisfactory service.

8. By the impugned order dated 30th
March/1st April, 2002 the Commissioner,
Rural Development, U.P. set aside the
order dated 11.6.2001 passed by the Chief
Development Officer/Executive Director,
respondent no.3. He has further directed
that the amount which the petitioner has
received w.e.f. 3.5.2000 in pursuance of
the order dated 11.6.2001 granting him
promotional pay scale be recovered from
the salary of the petitioner. Pursuant to
thereof the petitioner was communicated
that recovery is to be made from his
salary, which has been paid to him
allegedly in excess, in the promotional
pay scale.

9. Counsel for the petitioner submits
that the grievance of the petitioner is that
he was entitled to the promotional pay
scale w.e.f. 3.5.2000, hence salary of the
promotional pay scale granted to him
from the aforesaid date could not have
been recovered by the State Government
without affording him an opportunity of
hearing and such action was against all
cannons of principle of natural justice. He
has placed before us the impugned order
to establish that it has been passed
primarily on the ground that Chief
Development Officer/Executive Director
had no power to grant promotional pay
scale and he has exercised powers not
vested in him. The petitioner in this
regard has relied upon the order dated
13th May, 1999 in support of his case
which was passed by the Secretary, State
of Uttar Pradesh. It provides that the
Executive Director of the DRDA is
competent to exercise the financial as well
as administrative powers. A copy of this
order is appended as Annexure-9 to the
writ petition.

10. It is then submitted by him that
since right has accrued to the petitioner
having been granted Time Pay Scale
according to his entitlement, therefore,
question of recovery of alleged excess in
the order of recovery impugned in the
writ petition is not only a misnomer.
According to him, as nothing in excess of
326 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
salary to which he was entitled to having
been paid to him the impugned order
suffers from the vice of being in violation
of principles of being illegal, arbitrary and
against the principles of natural justice.

11. Learned counsel for the
respondents
submits
that
Chief
Development Officer/Executive Director,
respondent no.3 was not empowered or
authorize to grant Time Pay Scale to the
petitioner w.e.f. 3.5.2000 i.e. the date on
which he alleges to have become entitled
to after putting 14 years of service,
therefore,
the
impugned
order
for
recovery from the petitioner has rightly
been passed.

12. After hearing counsel for the
parties and on perusal of record we find
that it has no where been disputed in the
counter affidavit that the petitioner was
not entitled to the promotional pay scale
w.e.f. 3.5.2000, which was granted to him
by
the
Chief
Development
Officer/Executive Director, respondent
no.3 vide order dated 30th March/1st
April, 2002 on serving the department for
14 years of continuous and satisfactory
service. The claim of the petitioner in the
nature of promotion by selection, rather is
a claim where he became entitled to Time
pay scale automatically on putting 14
years satisfactory service as per G.O.
dated 2.12.2000.

13. In our considered opinion, the
Chief
Development
Officer/Executive
Director could have passed the order as he
was exercising the powers parallel to that
of the District Magistrate, who is the
appointing authority of the district. In
case any irregularity or an illegality was
committed by the CDO in granting time
scale, the Commissioner could have very
well ratified the same as grant of time pay
scale to the petitioner w.e.f. 3.5.2000 was
automatic
on
putting
14
years
of
satisfactory service as provided in G.O.
dated 2.12.2000 but there was no occasion
for its cancellation.

14. From the record also it appears
that no action has been taken by the State
Government against the CDO/Executive
Director, respondent no.3 for alleged
exercise of power not vested in him. Even
if the Commissioner would have passed
the order granting Time Pay Scale to the
petitioner he would also have granted it
w.e.f. 3.5.2000 i.e. the day the petitioner
had completed 14 years of continuous and
satisfactory service. It is not the case of
respondents that petitioner was not
entitled to Time pay scale, w.e.f.
3.5.2000, rather the stand of respondents
is that CDO/ Executive Director could not
have passed the order and it ought to have
been passed by the Commissioner. Since
in any case the date of grant of pay scale
would be 3.5.2000, there is no question of
any excess payment of salary to him
which is sought to be recovered by the
impugned order. Issuance of order for
grant of Time pay scale in pursuance of
the G.O. dated 2.12.2000 was only formal
and the Commissioner if vested with
power for granting Time Pay Scale ought
to have ratified the order of the CDO
instead of cancelling it and issuing order
of recovery which appears to be illegal on
face of it as the petitioner was not being
paid extra salary or any amount which he
was not entitled to receive the same,
therefore, recovery could not be made
from him.

15. Nothing has been placed before
us by the respondents that Commissioner
has power to grant Time Pay Scale to the
1 All Shyam Chandra Pathak V. The U.P. State Food And Essential Commodities Corporation
327
petitioner and not the Chief Development
Officer/Executive Director and Head of
the Department.

16. For all the reasons stated above we
quash the impugned orders dated 30th
March/1st April,2002 and dated 4.4.2002
passed by respondent nos. 2 and 3
respectively. However, in the facts and
circumstances of the case noted above and
in order to bring finality to any irregularity
in the orders passed by the CDO/Executive
Director,
we
further
direct
the
Commissioner to ratify the order with effect
from the date the appellant has completed
14 years of satisfactory service.

17. The writ petition is allowed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.20633 of 1988

Shyam Chandra Pathak
 ...Petitioner
Versus
The
U.P.
State
Food
And
Essential
Commodities Corporation ...Respondents

Counsel for the Petitioner:
Sri Janardan Sahai
Sri Sanjiv Ratna
Sri Sharad Kumar Srivastava
Sri D.N. Singh

Counsel for the Respondents:
Sri Srikant Shukla
S.C.

Constitution
of
India,
Article
226Regularization
Claimed
based
upon
judgments-prior to Uma Devi Case-ad-hoc
employees
working
long
period-not
entitled for regularization-if appointed
without post, without following process of
recruitment-not entitled for regularization.

Held: Para 6

So far as Judgment of Hon'ble Single
Judge relied by learned counsel for
petitioner
are
concerned,
all
the
judgments have been rendered before
10.4.2006 on which date Constitution
Bench of Apex Court rendered decision in
Secretary, State of Karnataka Vs. Uma
Devi, 2006 (4) SCC 1 and held that all the
judgments
contrary
thereto
stand
overruled and thus those judgments are no
more applicable in view of aforesaid
Constitution Bench Judgment. Moreover, it
is also well settled that benefit of interim
order
cannot
be
extended
in
case
ultimately petitioner is not successful in
establishing his right.
Case law discussed:
Civil Misc. Writ Petition No. 20398 of 1988,
Rakesh Kumar Saxena Vs. U.P. State Food and
Essential Commodities Corporation Ltd. and
others; Special Appeal No. (7) of 2008, Tek
Chand and others Vs. U.P. State Food and
Essential Commodities Corporation Ltd. and
others; 2001 (1) AWC 287 (SC); Shivaji Singh
and others v. High Court of Judicature at
Allahabad and others, Civil Misc. Writ Petition
No.52755 of 2002; 2006 (2) AWC 1738; 2006 (4)
SCC 1; 2007 (2) ESC 987; AIR 1975 Allahabaad
280; 1986 (4) LCD 196; AIR 1994 Allahabad 273;
JT 2009 (2) SC 520; J.T. 2009 (10) SC 309

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Heard learned Counsel for
petitioner and Sri Srikant Shukla for
respondents 1 and 2.

2. Petitioner was engaged on purely
ad hoc basis and by means of impugned
order he has been terminated since his
services were no longer required.

3. Learned counsel for petitioner
relied on judgments of this Court in Civil