# Kanaujia and others v. State of U.P. and

- **Citation:** (2015) 1 ILRA 482
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-12
- **Case number:** Writ-A No. 60741 of 2010
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanaujia-and-others-v-state-of-u-p-and-43204
- **Pages:** 6

## Headnote

Constitution of India, Art.-226-Recovery
of excess amount-wrongly paid towards
promotional pay-petitioners working as
Tube well operator-given promotional
pay w.e.f. 1990-while in 2006 after
retirement-tress out wrong done in
fixation-instead of 1994-benefit given
from
1990-held-petitioner
not
being
instrumental in getting excess amount-in
view
of
contingencies
contained
in
judgment of Apex Court in Rafiq Masih
case-recovery not proper.
Held: Para-20
If there were possibility of any doubt
being entertained with regard to the
basic
proposition
with
respect
to
recovery of amounts paid by mistake to
employees, the same has been accorded
a quietus by the above pronouncement
of the Apex Court.
Case Law discussed:
(2004) 2 ESC, 791; 2011 (5) ESC 3035; 2014
(8) SCC 883; Civil Appeal No. 11527 of 2014 .

## Text

482
 INDIAN LAW REPORTS ALLAHABAD SERIES
powers afresh when another temporary
vacancy occurs.
15. The respondents concede that
the District Magistrate could not have
appointed a Sub-Divisional Magistrate
and that only a member of the kshetra
panchayat could be appointed as a
temporary Pramukh as held by a Division
Bench of this Court in Smt. Mamta
Kanaujia and others Vs. State of U.P. and
others, 2009 (3) ALJ 339.
16. In the light of the aforesaid, the
impugned orders dated 30.9.2014 and
15.10.2014 cannot be sustained and are
quashed.
17. The writ petition is allowed. The
District Magistrate is directed to give the
charge of officiating Pramukh to the
petitioner forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ-A No. 60741 of 2010
Along with Writ-A No. 61524 of 2010,
Writ-A No. 66305 of 2010, Writ-A No.
61529 of 2010
Hansraj Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri M.K. Mishra
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Recovery
of excess amount-wrongly paid towards
promotional pay-petitioners working as
Tube well operator-given promotional
pay w.e.f. 1990-while in 2006 after
retirement-tress out wrong done in
fixation-instead of 1994-benefit given
from
1990-held-petitioner
not
being
instrumental in getting excess amount-in
view
of
contingencies
contained
in
judgment of Apex Court in Rafiq Masih
case-recovery not proper.
Held: Para-20
If there were possibility of any doubt
being entertained with regard to the
basic
proposition
with
respect
to
recovery of amounts paid by mistake to
employees, the same has been accorded
a quietus by the above pronouncement
of the Apex Court.
Case Law discussed:
(2004) 2 ESC, 791; 2011 (5) ESC 3035; 2014
(8) SCC 883; Civil Appeal No. 11527 of 2014 .
(Delivered by Hon'ble Yashwant Varma, J.)
1. Heard Shri M.K. Mishra, learned
counsel for the petitioners and Shri H.C.
Pathak,
learned
Standing
Counsel
appearing for the contesting respondents.
2. The parties are agreed that all
these four connected writ petitions
involve the same controversy and stem
from similar orders of recovery of pay
made against the petitioners. Accordingly,
and with their consent all these writ
petitions are being disposed of by this
common judgment.
3. Arguments have been advanced
by the learned counsel for the parties
treating Writ Petition No.60741 of 2010,
to be the leading writ petition. However,
it would be appropriate to briefly notice
the facts of each case.
Writ Petition No.60741 of 2010.
1 All] Hansraj Singh & Ors. Vs. State of U.P. & Ors.
483
4. All the petitioners are "Tube-well
Operators" who were appointed in the
Irrigation Department, Government of
U.P. on different dates between 19681970. Upon successful completion of 14
to 16 years of satisfactory service they
were granted promotional pay scale of
Rs.1200-2040/-
with
effect
from
01/5/1990. The petitioners subsequently
retired
from
service
in
2006-2007.
However, during the course of finalization
of their pension papers, it appears that the
issuance of grant of the pay scale of
Rs.1200-2040/- came up for consideration
and the respondents took the view that the
said promotional pay scale was liable to
be granted to them with effect from
10/10/1994. These decisions of the State
Government stand embodied in the orders
18/12/2006 and 22/12/2006. It was on the
basis of the aforementioned orders that
individual
orders
of
recovery
of
differential pay scales were issued against
the petitioners on 05/10/2007.
Writ Petition No.61524 of 2010.
5.
The three petitioners in this writ
petition are "Tube-well Operators" who were
working in the Irrigation Department and had
been similarly granted pay scale of Rs.12002040/- with effect from 01/5/1990. These
petitioners who were appointed in the years
1969, 1971 and 1976 have since retired upon
attaining the age of superannuation in the year
2008 and 2010. Upon the State Government
passing the orders dated 18/12/2006 and
22/12/2006,
orders
of
recovery
dated
20/12/2008 (against the petitioner nos.1 and 2
herein) and 08/4/2008 (against the petitioner
no.3) came to be passed.
6. Aggrieved by the aforesaid, the
present writ petition came to be filed
before this Court.
Writ Petition No.66305 of 2010.
7. Here too, the 15 petitioners are
said to be "Tube-well Operators" who had
been appointed in the years 1950, 1968,
1969 and 1970. Upon completion of their
qualifying service, they were granted the
promotional pay scale of Rs.1200-2040/-
with effect from 01/5/1990.
8. They subsequently retired from
service in the years 2007, 2008, 2009 and
2010.
9. Against all these petitioners and
consequent to the orders dated 18/10/2006
and
22/12/2006,
similar
orders
of
recovery have been passed on 23/8/2007.
Writ Petition No.61529 of 2010.
10. The petitioners herein were
appointed as "Tube-well Operators" in the
Irrigation Department of the State of U.P.
in the years 1971 and 1976. They too
upon completion of 14 to 16 years of
satisfactory service were granted the
promotional pay scale of Rs.1200-2040/-
with effect from 01/5/1990. They have
since retired from service in the years
2009, 2010 and 2011. Consequent to the
orders dated 18/12/2006 and 22/12/2006
orders of recovery dated 27/12/2007 were
issued against the petitioners and which
form subject matter of challenge in this
writ petition.
11. The admitted facts as they
emerge from the pleadings of the parties
are:that the petitioners upon completion
of 14 to 16 years of service as "Tube-well
Operator" in the Irrigation Department
were granted a promotional pay scale of
Rs.1200-2040/-. Continuing in service,
484
 INDIAN LAW REPORTS ALLAHABAD SERIES
they were granted revised pay scales and
also retired from service in 2006-2007. It
appears that with effect from 10/10/1994,
the petitioners were drawing Rs.1320/-
and with consequential pay revisions they
at the time of retirement were earning
Rs.5500/-. The pay scale of Rs.12002040/- in which the petitioners were
drawing Rs.1320/- as on 10/10/1994, was
granted to them with effect from 01/5/1990.
It
thereafter
transpires
that
certain
clarifications were received from the State
Government with regard to the dates from
which the said pay revisions were liable to be
granted to the employees. These instructions
are contained in the communications of the
State Government dated 18/10/2006 and
22/12/2006.
Pursuant
thereto,
all
the
petitioners were served with orders dated
05/10/2007 (Annexures-1 to 5) to the writ
petition. These orders disclose the amounts
which the petitioners had drawn and retained
at the relevant time and what was actually
payable to them as per the directives of the
Government. These pay revision orders
carried a note that insofar as the retired
employees are concerned, the excess
payment made to them shall be recovered in
one installment. It is at this stage that the
petitioners approached this Court.
12. From the records it transpires
that these orders passed in 2007 were
assailed before this Court only in 2010
and this Court while entertaining the writ
petitions did not grant any interim
protection
to
the
petitioners.
Consequently, the learned counsel for the
petitioners informs, that the excess
amounts have been recovered from all the
petitioners.
13. Learned counsel for the
petitioners has submitted that the excess
amount which is sought to be recovered
from the petitioners is an action which is
clearly arbitrary, inasmuch as the pay
revision is sought to be affected after
more than 17 years. Elaborating his
submissions, learned counsel for the
petitioners submitted that the petitioners
had been granted the benefit of Pay Band
of
Rs.1200-2040
with
effect
from
01/5/1990, and it was this decision which
was sought to be reviewed by the orders
dated 05/10/2007. He further submitted
that the respondents nowhere contended
that the said excess payments came to be
made to the petitioners by virtue of
concealment of any material facts and or
any misrepresentation by them. He
therefore, submitted, that the impugned
orders of recovery were clearly arbitrary
and are accordingly liable to be quashed
by this Court.
14. Learned Standing Counsel while
opposing
these
writ
petitions
has
contended that the pay revisions came to
be made pursuant to the clarifications
received from the Statement Government
and that therefore, the petitioners cannot
be permitted to retain the excess amount.
He further submitted that the petitioners
do not dispute the correctness of the
clarifications
issued
by
the
State
Government and at least no such ground
has been taken in the writ petition which
may cloud the validity of the clarifications
issued by the State Government.
15. In response to the above
submissions, advanced on behalf of the
State Government, the learned counsel for
the petitioners while reiterating his
submissions further urged that the action
of the respondents was not only arbitrary,
but was also discriminatory. He submitted
that the recoveries sought to be made
from the petitioners was confined to
1 All] Hansraj Singh & Ors. Vs. State of U.P. & Ors.
485
employees posted only in six Districts out
of the 71 Districts of the State of U.P. He
further
submitted
that
the
State
Government had taken no steps for
recovery from the pay or pensionary
benefits of the employees who had retired
prior to 23/8/2007. These pleas of
discrimination have been specifically
taken in paragraphs 21 and 22 of the writ
petition and the only traverse which the
State Government has averred is that the
discrepancies in grant of pay scales came
to light only in the course of test checking
in some districts and that accordingly it
cannot be stated that the provisions of
Articles 14 and 16 of the Constitution of
India had not been violated.
16. The vexed question of recovery
from the pay or pensionary benefits of
employees has engaged the attention of not
just this Court, but also the Apex Court from
time to time. Following a long line of decision
rendered by the Apex Court a Bench of this
Court in Dr. Gopalji Mishra Vs. State of U.P.
& Ors (2004) 2 ESC, 791 was pleased to hold
as follows in paragraph 20:
"20. So far as the payment of excess
amount, which the petitioner was not
entitled is concerned, as there has been
no misrepresentation or fraud on the part
of the petitioner, he cannot be asked to
refund the same. More so, petitioner
might have spent the same considering his
own money. Recovery thereof would
cause great financial hardship to the
petitioner.
In
such
circumstances,
recovery should not be permitted. [Vide
Shyam Babu Verma and Ors. v. Union of
India and Ors., (1994) 2 SCC 521 ; Sahib
Ram v. State of Haryana and Ors., 1995
Suppl (1) SCC 18 and V. Gangaram v.
Regional Joint Director and Ors., AIR
1997 SC 2776]".
17. The basic proposition laid down
in
the
above
decision
has
been
consistently followed by this Court and
again reiterated in Dr. Avinash Chand
Goel Vs. State of U.P. & Ors, 2011 (5)
ESC 3035. Following was laid down in
paragraph 7:
"7.
In
the
present
case
the
established principle of law, that a person
cannot be asked to repay the amount,
which was not due to him, but has been
paid to him without any misappropriation
or fraud, is squarely applicable. In this
case the petitioner had protested even to
the alleged wrong fixation of the pay. He
has given details of his entitlement for the
correctness of the applicability of the pay
scale and the benefits to be drawn by him
under the orders of the Supreme Court in
Chandra Prakash's case in, which not
only the seniority but consequential
benefits were also allowed to be given to
those medical officers who were to be
given promotions. In such case, the
principle of law 'no work no pay' will not
be applicable."
18. There is perhaps no need to
burden this judgement with reference to
further precedents, but in order to
complete the sequence, it would be
apposite to note that the seeming
contradictions
on
certain
judgments
rendered by the Apex Court in this regard,
led to a reference being made to a 3
Judges' Bench of the Supreme Court of
India in State of Punjab & Ors. Vs. Rafiq
Masih (White Washer) etc and the
judgment handed down by the said Bench
which stands reported in 2014 (8) SCC
883 in paragraph 13 held as under:
"13. Therefore, in our opinion, the
decisions of the Court based on different
486
 INDIAN LAW REPORTS ALLAHABAD SERIES
scales of Article 136 and Article 142 of
the Constitution of India cannot be best
weighed on the same rounds of reasoning
and thus in view of the aforesaid
discussion, there is no conflict in the
views
expressed
in
the
first
two
judgements and the latter judgement."
19. Upon the reference being so
returned, the main matter [Civil Appeal
No. 11527 of 2014 State of Punjab and
others -v- Rafiq Masih (Whitewasher)
decided on 18.12.2014] came up for
consideration before the Hon'ble Supreme
Court of India again when the Court after
taking note of all its earlier judgments
handed down in this regard was pleased to
record its conclusions in paragraph 12 as
under:
"12. 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."
20. If there were possibility of any
doubt being entertained with regard to the
basic proposition with respect to recovery
of amounts paid by mistake to employees,
the same has been accorded a quietus by
the above pronouncement of the Apex
Court.
21. A perusal of the broad
proposition laid down in the aforesaid
judgment of the Apex Court establishes
that the case of the petitioners would
clearly fall within the categories (i), (ii)
and (iii).
22. Consequently, the impugned
orders of recovery dated 05/10/2007,
passed in Writ Petition No.60741 of 2010,
impugned orders dated 20/12/2008 and
08/4/2008,
passed
in
Writ
Petition
No.61524 of 2010, impugned order dated
23/8/2007,
passed
in
Writ
Petition
No.66305 of 2010, and impugned order
dated 27/12/2007 passed in Writ Petition
No.61529 of 2010 cannot be sustained
and
are
liable
to
be
quashed.
1 All] Afjal Khan Vs. State of U.P. & Ors.
487
23. Accordingly, and in view of the
above, all these writ petitions stand
allowed.
24. All the impugned orders dated
05/10/2007, 20/12/2008 and 08/4/2008,
23/8/2007, and 27/12/2007, made against
the petitioners shall stand quashed. The
petitioners shall be entitled to the refund
of sums recovered from them pursuant to
the aforesaid orders.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ-A No. 62804 of 2009
Afjal Khan
 ...Petitioner
Versus
State of U.P. & Ors.
.
..Respondents
Counsel for the Petitioner:
Sri Anil Kumar Pathak
Counsel for the Respondents:
C.S.C.
U.P. Police Officers of Subordinate Rank
(Punishment & Appeal) Rules 1991-Rule
8(2)(b)-dismissal by evoking power under
rule-without recording satisfaction about
impractically to hold enquiry-rather self
contradictory findings recorded-on one
hand conclusive and adequate evidence-on
other in departmental enquiry no person
would come to give evidence-order not
refer or rely upon any such material to
justify impugned order-quashed.
Held: Para-15 & 16
15. More importantly, it must be borne
in
mind
that
when
powers
under
provisions such as those contained in
Clause (b) of Rule 8(2) are exercised,
there must exists material before the
authority which enables him to form an
opinion
that
it
is
not
reasonably
practicable to hold the departmental
inquiry. No such material appears to
have been in existence at the time when
the impugned order was passed. At least,
the order does not refer to or rely upon
any such material. Nor was any such
material laid before this Court to justify
the passing of the order impugned.
16. In the opinion of the Court, the
circumstances and the nature of the
persons who were likely to be involved in
bringing home the charge against the
petitioner were clearly present and there
was no material on the basis of which a
reasonable person could have come to a
conclusion that it was not reasonably
practicable to hold a regular inquiry
against the petitioner.
Case Law discussed:
2014 (13) SCC 244; SCC p. 369, para 5.
(Delivered by Hon'ble Yashwant Varma, J.)
1.
The challenge in the present writ
petition is to an order dated 9.2.2009
dismissing the petitioner, who was a
Constable in the Armed Police, from
service. The order itself has been passed in
exercise of powers conferred by Rule
8(2)(b) of the U.P. Police Officers of
Subordinate
Rank
(Punishment
And
Appeal) Rules, 1991 (hereinafter referred to
as the "Rules, 1991"). The provision
aforementioned confers discretion upon the
Authority to dispense with the inquiry
contemplated and liable to be conducted
before dismissing/removing a person or
inflicting upon him the punishment of
reduction in rank. A reading of the aforesaid
provision shows that the said power is
available to be exercised if the Authority is
satisfied that for reasons recorded in
writing, it is not practicable to hold such an
inquiry. The provision in such sense is akin