# Nand Kishor Shukla v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-23
- **Case number:** Writ-A No. 1049 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-kishor-shukla-v-state-of-u-p-ors-54889
- **Pages:** 6

## Headnote

Service Law-Model Conduct, Discipline
and Appeal Rules for Services of U.P. St.
Enterprises Regulations-Rule 39 & 48---
After
the
retirement
of
the
petitioner
impugned
order
has
been
passed
for
recovering of a certain amount from the
petitioner---In view of the undertaking that
had been given by the petitioner authorising
the respondents for recovering the amount
from his dues in case any erroneous pay
fixation was found and that the respondents
in the order impugned having indicated that
the amount of Rs.3,23,756/- is towards the
erroneous pay fixation that had been done by
the petitioner himself, consequently, no error
is found in the order impugned dated
13.10.2023 so far as it pertains to recovering
of an amount of Rs.3,23,756/- from the retiral
dues of the petitioner--- So far as the
recovery of Rs.2,29,651.29/- is concerned
once the amendment in Rule 39 is read with
Rule 48 of the Regulations, it clearly emerges
that the said amendment of making recovery
from a retired employee has only come into
force w.e.f. 10.10.2022 and the instant case,
the petitioner having retired at an earlier
stretch of time i.e. 30.11.2021, would not be
covered or governed by the said amendment
whereby the Corporation has armed itself of
making recovery after due proceedings from a
retired
employee---Recovery
of
Rs.2,29,651.29/-
from
the
petitioner,
is
quashed. (Para 20, 28 & 30)

Petition partly allowed. (E-15)

List of Cases cited:

## Text

416 INDIAN LAW REPORTS ALLAHABAD SERIES
his illness and only prayed for lesser
punishment before the appellate authority.
Still, even if for the sake of argument that
period is excluded, undisputedly, the period
of admitted unauthorized absence comes to
12 months and 5 days, for which absolutely
no explanation has been offered by the
appellant-petitioner.

20. That apart, it is the settled law that
highest degree of devotion, integrity and
discipline is required for those who are in
bank service. A reference may be made to
the judgement of Hon'ble Apex Court in
Canara Bank vs. V.K. Awasthy, 2005 AIR
SCW 2005. The appellant-petitioner has
clearly admitted in his reply before the
appellate authority at page 138 of the paper
book that he was detained in jail on
13.6.2020 on account of impersonation as
Police and Raw Officer. It has also come
on record (paragraph 6 of the counter
affidavit filed by the Bank) that earlier also
he was punished and awarded punishment
of reduction to a lower grade/scale 2 to 1
by the erstwhile syndicate bank.

21. Therefore, we do not find any legal
infirmity in the order impugned herein.

22. Present special appeal is devoid of
merit and is accordingly dismissed.
----------
(2025) 1 ILRA 416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 1049 of 2024

Nand Kishor Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Alok Singh

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

Service Law-Model Conduct, Discipline
and Appeal Rules for Services of U.P. St.
Enterprises Regulations-Rule 39 & 48---
After
the
retirement
of
the
petitioner
impugned
order
has
been
passed
for
recovering of a certain amount from the
petitioner---In view of the undertaking that
had been given by the petitioner authorising
the respondents for recovering the amount
from his dues in case any erroneous pay
fixation was found and that the respondents
in the order impugned having indicated that
the amount of Rs.3,23,756/- is towards the
erroneous pay fixation that had been done by
the petitioner himself, consequently, no error
is found in the order impugned dated
13.10.2023 so far as it pertains to recovering
of an amount of Rs.3,23,756/- from the retiral
dues of the petitioner--- So far as the
recovery of Rs.2,29,651.29/- is concerned
once the amendment in Rule 39 is read with
Rule 48 of the Regulations, it clearly emerges
that the said amendment of making recovery
from a retired employee has only come into
force w.e.f. 10.10.2022 and the instant case,
the petitioner having retired at an earlier
stretch of time i.e. 30.11.2021, would not be
covered or governed by the said amendment
whereby the Corporation has armed itself of
making recovery after due proceedings from a
retired
employee---Recovery
of
Rs.2,29,651.29/-
from
the
petitioner,
is
quashed. (Para 20, 28 & 30)

Petition partly allowed. (E-15)

List of Cases cited:

1. St. of Pun. & ors. Vs Rafiq Masih (White
Washer) & ors. 2015 (4) SCC 334

2. High Court of Punjab & Haryana & ors. Vs
Jagdev Singh 2016 (14) SCC 267

(Delivered by Hon'ble Abdul Moin, J.)
1 All. Nand Kishor Shukla Vs. State of U.P. & Ors.
417

1. Heard learned counsel for the
petitioner, Shri Pankaj Patel, learned
Standing counsel appearing on behalf of
respondent No.1 and Shri Rishabh Tripathi,
learned counsel appearing on behalf of
respondents No.2 to 4.

2. With the consent of learned
counsels appearing for the contesting
parties, the writ petition is finally being
decided.

3. The instant petition has been filed
praying for the following main relief(s):

"(i). Issue a writ, order or
direction in the nature of certiorari thereby
quashing
the
impugned
order
dated
13.10.2023 passed by the respondent No.3,
a copy of which has been filed as annexure
1 to the petition.

(ii). Issue a writ, order or
direction in the nature of mandamus
commanding the respondents to pay the
amount of Rs.553407.29/- along with
interest which has been recovered by the
respondents from the post retiral dues of
the petitioner."

4. The contention of learned counsel
for the petitioner is that the petitioner
retired
on
attaining
the
age
of
superannuation
on
30.11.2021
while
working on the post of Sales Officer.
Subsequent thereto, the respondents have
issued
the
order
impugned
dated
13.10.2023, a copy of which is Annexure-1
to the writ petition, whereby they have
made a recovery from the dues of the
petitioner.

5. The contention is that at the time of
retirement of the petitioner the Rules with
which the petitioner was governed namely
Model Conduct, Discipline and Appeal Rules
for Services of U.P. State Enterprises
Regulations (hereinafter referred to as "the
Regulations") did not provide for taking of
any action against a retired employee
subsequent to the retirement of the employee
concerned.

6. It is contended that an amendment in
the Regulations has only been made by the
respondent Corporation in its meeting held on
10.10.2022, a copy of which is part of
Annexure SCA-2 to the supplementary
affidavit dated 04.09.2024 per which it has
been provided that in case subsequent to
retirement of an employee any fact emerges
then disciplinary proceedings can be held
provided a period of four years has not lapsed
since then.

7. The contention is that in terms of
Rule 48 of the Regulations any amendment
could only come into force after a decision is
taken by the Board and a decision has only
been taken by the Board for amending its
rules
on
10.10.2022
consequently
the
petitioner having retired prior to the said date,
the amended rules could not be made
applicable for the petitioner for the purpose of
taking action against the petitioner by way of
recovery and hence the order impugned so far
it pertains to recovery from the dues of the
petitioner, merits to be set-aside.

8. The further contention is that the
respondents have also indicated about an
excess payment having been made on
account of wrong fixation of his own salary
by the petitioner while he was working as the
Drawing & Disbursing Officer for which an
amount of Rs.3,23,756/- has been adjusted
from the gratuity payable to the petitioner.

9. The contention is that keeping in
view of the law laid by the Hon'ble
Supreme Court in the case of State of
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Punjab and Others Vs. Rafiq Masih
(White Washer) and Others 2015 (4)
SCC 334, no recovery is permissible from
a retired employee and as such the order
impugned dated 13.10.2023, so far as it
pertains to recovering the amount of
Rs.323756/-, merits to be quashed on this
ground alone.

10. So far as the second recovery is
concerned
i.e.
for
an
amount
of
Rs.229651.29/-, the contention of learned
counsel for the petitioner is that the said
recovery is towards the alleged loss which is
said to have been caused by the petitioner to
the Corporation and the order impugned for
recovery having passed on 13.10.2023 and
the petitioner having retired on 30.11.2021
and at the time of retirement of the petitioner
there being no provision in the rules for
making recovery from a retired employee,
consequently, the amendment in rules, which
has come into force subsequent to retirement
of petitioner that is w.e.f. 10.10.2022, cannot
be used by the respondents for making
recovery from the petitioner.

11. On the other hand, Shri Rishabh
Tripathi, learned counsel appearing for the
respondent(s)-Corporation has argued that
the amendment in Rule 39 of the
Regulations, which has come into force
w.e.f. 10.10.2022, would also cover all
retired employees provided the irregularity
committed
by
them
comes
to
the
knowledge of the department within a
period of four years of their retirement. As
the petitioner has retired on 30.11.2021,
consequently, the order impugned dated
13.10.2023, having been passed within the
aforesaid period of four years, has correctly
been passed and there is no infirmity in the
same so far as it pertains to recovering an
amount of Rs.2,29,651.29/- towards the
loss caused to the Corporation.

12. Shri Tripathi, learned counsel for
the respondent(s)-Corporation states that
considering that the Board of Management
has approved the said amendment in Rule
39 of the Regulations on 10.10.2022, as
such, the said amendment would come into
force with effect from the said date.

13.
So
far
as
the
amount
ofRs.3,23,756/-
is
concerned,
Shri
Tripathi has placed reliance on the
judgment of Hon'ble Supreme Count in the
case of High Court of Punjab and
Haryana and Others vs. Jagdev Singh
2016 (14) SCC 267 to contend that as the
petitioner had given an undertaking at the
time of his pay fixation, a copy of which
has been filed as annexure C.A.2 to the
short counter affidavit dated 22.03.2024,
that in case of wrong fixation, the excess
amount can be recovered from his dues,
consequently the respondents are within
their right of recovering the aforesaid
amount and the principle of law laid down
by the Hon'ble Supreme Court in the case
of Rafiq Masih (supra) would not be
applicable.

14. Heard the learned counsels for the
parties and perused the record.

15. From the arguments as raised by
learned counsels for the parties and a
perusal of record, it emerges that the
petitioner had retired on attaining the age of
superannuation on 30.11.2021. Subsequent
to his retirement, the order impugned dated
13.10.2023 has been passed for recovering
of a certain amount from the petitioner.

16. The amount is sought to be
recovered is in two parts namely (a) an
amount of Rs.3,23,756/- is to be recovered
on account of the incorrect pay fixation of
his own salary which has been done by the
1 All. Nand Kishor Shukla Vs. State of U.P. & Ors.
419
petitioner while working as the Drawing &
Disbursing Officer in the department and
(b) a recovery of Rs.2,29,651.29/- which is
towards the loss which has been caused to
the Corporation.

17. So
far
as
the
amount
of
Rs.3,23,756/- is concerned, as the order
impugned dated 13.10.2023 has been
passed subsequent to the retirement of the
petitioner, consequently at the first blush,
the principle of law laid down by the
Hon'ble Supreme Court in the case of
Rafiq Masih (supra) may be said to be
applicable as the Hon'ble Supreme Court
has said that no recovery can be made from
a retired employee.

18. However, the controversy involved
in the instant case is that the petitioner had
given an undertaking, a copy of which has
been filed as annexure CA-2 to the short
counter
affidavit,
whereby
he
had
authorised the Corporation to recover the
amount from his dues in case any erroneous
or wrong fixation is found in his pay
fixation. Incidentally, there is no denial of
the undertaking given by the petitioner as
per the averment made in the rejoinder
affidavit except indicating that the option
was given in the year 2016-17 while
recommending 7th pay scale while the
recovery has been made on 17.11.2023.

19. Once an undertaking has been
given by an employee, it is not the principle
of law laid down by the Hon'ble Supreme
Court in the case of Rafiq Masih (supra)
which would be applicable rather it would
be the principle of law as per judgment of
the Hon'ble Supreme Court in the case of
Jagdev Singh (supra) which would be
applicable wherein the Hon'ble Supreme
Court, after considering an undertaking that
had been given by an employee authorising
the respondents to recover from his dues
any erroneous fixation, has held as under:

"11. The principle enunciated in
Proposition (ii) above cannot apply to a
situation such as in the present case. In the
present case, the officer to whom the
payment was made in the first instance was
clearly placed on notice that any payment
found to have been made in excess would
be required to be refunded. The officer
furnished an undertaking while opting for
the revised pay scales. He is bound by the
undertaking."

20. Accordingly, considering the law
laid down by the Hon'ble Supreme Court in
the case of Jadgev Singh (supra), wherein
the earlier judgment of Rafiq Masih
(supra) had been considered and keeping
in view of the undertaking that had been
given by the petitioner authorising the
respondents for recovering the amount
from his dues in case any erroneous pay
fixation was found and that the respondents
in the order impugned having indicated that
the amount of Rs.3,23,756/- is towards the
erroneous pay fixation that had been done
by the petitioner himself, consequently, no
error is found in the order impugned dated
13.10.2023 so far as it pertains to
recovering of an amount of Rs.3,23,756/-
from the retiral dues of the petitioner.

21. At this stage, learned counsel for
the petitioner states that the calculation
sheet has not been provided to him.

22. It would be open for the
respondents to supply the calculation sheet
to the petitioner by which they have arrived
at the figure of Rs.3,23,756/- and in case
the petitioner is not satisfied with the same,
he would be indicating the correct amount
to be recovered which would also be
420 INDIAN LAW REPORTS ALLAHABAD SERIES
considered in accordance with law by the
respondents.

23. So far as the recovery of
Rs.2,29,651.29/- is concerned, as has been
indicated in the order impugned dated
13.10.2023, the sheet anchor of the
respondent(s)-Corporation for recovering
the said amount is on the basis of the
amendment which has been made in the
Regulations more particularly in Rule 39.

24. The amendment in Rule 39 of the
Regulations reads as under:

"बबन्दु 19- यदद ववर्ागीय जााँच की
कायावाह के लजमबत रहते हुए आरोवपत
सरकार सेवक अपनी अधिवषाता आयु प्राप्त
कर सेवातनवृत्त हो जाता है तो लजमबत जााँच को
सी०एस०आर० के अनुच्छेद-351 ए के तहत
पेंिन से कटौती के सलए जार रखा जा सकता
है, परन्तु सेवातनवृत्त सरकार सेवक को कोई
दण्ड नह ीं ददया जा सकता है और न ह उक्त
दण्ड के उद्देचय से कायावाह प्रारमर् की जार
रखी जा सकती है।

बबन्दु 20- यदद सेवातनवृवत्त के
पचचात् कोई तथ्य सामने आए तो सेवातनवृवत्त
के पचचात् र्ी सी०एस०आर० के अनुच्छेद-351
ए के तहत कायावाह की जा सकती है, बिते
कक जजस घटना के समबन्ि में जााँच प्रारमर्
की जाय, जााँच प्रारमर् करने की ततधथ को उस
घटना को चार वषा से अधिक समय न बीत
चुका हो।

बबन्दु 21- सरकार िन का गबन
या दुववातनयोजन आदद होने पर दोषी
सरकार
सेवक
के
ववरूद्ि
ववर्ागीय
कायावाह में िासकीय िन की क्षतत की
समपूणा वसूल ककये जाने हेतु प्रथम चरण
में
ह
सक्षम
प्राधिकार
द्वारा
यह
सुतनजचचत कर सलया जाय कक समपूणा िन
की क्षतत की वसूल समर्व है अथवा नह ीं।
यदद यह समर्व न हो तो तत्परता से
न्यायालय के माध्यम से उस सरकार
सेवक से ससववल लायबबसलट के रूप में
उक्त हातन की िनरासि वसूल करने हेतु
कायावाह सुतनजचचत की जाय।"

25. The said amendment has been
approved by the Board of Management in
its meeting dated 10.10.2022 at Serial
No.271(7) of the Resolution, a copy of
which has been filed as part of annexure
SCA-2 to the supplementary short counter
affidavit.

26. Rule 48 of the Regulations reads
as under:

"48- बोडा समय-समय पर इस
तनयमावल में सींिोिन, पररवतान तथा
पररवद्ािन कर सकता है और ऐसे सर्ी
सींिोिन, पररवतान अथवा पररवद्ािन उसमें
उजल्लखखत ततधथ से प्रर्ावी होंगे।"

27. From a perusal of the Rule 48 of
the Regulations, it emerges that the Board
can
make
amendment,
changes
and
modification in the Rules and such changes
will come into force w.e.f. the date
indicated in the same.

28. Once the amendment in Rule 39 is
read with Rule 48 of the Regulations, it
1 All. Dr. Meenakshi Saxena Vs. State of U.P. & Ors.
421
clearly emerges that the said amendment of
making recovery from a retired employee
has only come into force w.e.f. 10.10.2022
and the instant case, the petitioner having
retired at an earlier stretch of time i.e.
30.11.2021, would not be covered or
governed by the said amendment whereby
the Corporation has armed itself of making
recovery after due proceedings from a
retired employee.

29. Keeping in view of the aforesaid
discussion, it is thus apparent that the order
impugned dated 13.10.2023, so far as it
recovers the amount of Rs.2, 29,651.29/-
from the petitioner by exercising the power
under the amended Rule 39 of the
Regulations,
has
been
exercised
erroneously by the respondents which thus
vitiates
the
order
impugned
dated
13.10.2023 to that extent.

30. Accordingly, the writ petition is
partly allowed. The order impugned dated
13.10.2023, a copy of which is annexure 1
to the petition, so far as it directs for
recovering
of
an
amount
of
Rs.2,29,651.29/- from the petitioner, is
quashed. The respondents are directed to
refund the aforesaid amount, if already
recovered, to the petitioner within a period
of six weeks from the date of receipt of
certified copy of this order.
----------
(2025) 1 ILRA 421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.01.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 1416 of 2025

Dr. Meenakshi Saxena ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jai Bahadur Singh

Counsel for the Respondents:
C.S.C.

(A) Service Law - Medical Officers -
Petition seeking grant of 'No Objection
Certificate' for participation in NEET PG
Examination-2024 - Provincial Medical
Health Services (PMHS) - Government
Order dated 15.03.2022 - Rural Posting -
Determination of 'rural posting' based on
distance from the district headquarters
and inclusion in the Government Order -
Requirement of three years of rural
service for eligibility to obtain 30%
weightage in NEET PG Examination-2024 -
Once a Community Health Centre at a
particular location is classified as a rural
posting, another hospital in the same
premises cannot be excluded from rural
classification without valid justification.
(Para - 4,6,9,13)

Petitioner
(Medical
Officer)
was
selected
through Public Service Commission - posted at
Community Health Centre in 2014- classified as
a rural posting - Later, she was directed to
work at the newly established 100 Beded
Combined Hospital in the same premises -
petitioner sought a 'No Objection Certificate' to
avail the rural service benefit for NEET PG
Examination-2024 - denied on the ground that
the hospital was not listed as a rural posting.
(Para -4,6 )

HELD: - Petitioner was duly entitled to be
granted a 'No Objection Certificate' for having
worked in the rural area for the period she had
worked at Community Health Centre as well as
the 100 Bedded Combined Hospital. Impugned
order was set aside. Respondents were directed
to grant a 'No Objection Certificate' forthwith to
the petitioner, so that she could participate in
the NEET PG Examination-2024. (Para -
15,16,17)

Petition allowed. (E-7)