# Pradeshik Chikitsa Avam Samudayik Sewa Sangh v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1631
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Bench:** Tarun Agarwala, Prabhat Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeshik-chikitsa-avam-samudayik-sewa-sangh-v-state-of-u-p-ors-43797
- **Pages:** 8

## Text

5 All. Pradeshik Chikitsa Avam Samudayik Sewa Sangh Vs State Of U.P. & Ors.

1631
 village Bahariya and based on the same, her domicile certificate has been cancelled, then the Court
refuses to interfere under Art. 226 of the Constitution.

16. As a sequel to the above, I find that petitioner has not only concealed material fact but
she has abused the process of law. She did not disclose that she earlier filed a writ petition and in
compliance thereof District Magistrate had rejected her claim. Without challenging the same she
preferred this writ petition. The Supreme Court in Amar Singh Vs. Union of India, (2011) 7 SCC
69, has strongly deprecated the practice to file writ petition by suppression of fact that earlier writ
petition was filed and held that such litigants have come with "unclean hands" and are not entitled
to be heard on the merits of their case.

17. Recently, the Supreme Court in the case of Subrata Roy Sahara v. Union of India
and others, (2014) 8 SCC 470, has taken note of the fact that a large number of frivolous petitions
are filed in the High Court and the Court has laid down that such tendency should be curbed by
imposing heavy costs upon the petitioner.

18. In fact the petitioner is not entitled to be heard on merit.

19. The writ petition is dismissed accordingly. The petitioner is liable to be imposed heavy
cost but having regard to the fact that she comes from marginalised section of the society, Court
defers the cost with a warning to her that she must be careful in future.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Writ A No.- 29360 Of 2011

Pradeshik Chikitsa Avam Samudayik Sewa Sangh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Head Notes-
Service Law-Ayurvedic Medical Officers-Ad-hoc appointment-Regularization-Promotional pay scaleAssured
Career
Progression
Scheme
(ACP)-Committee
constituted
under
Government
OrderRecommendations implemented-Subsequent withdrawal without notice-Violation of principles of natural
justice-Withdrawal order quashed.

Service Law-Ad-hoc service-Counting for promotional benefits-Government Orders dated 05.02.1998 and
18.06.2010-Ad-hoc
period
countable
after
regularization-Subsequent
Government
Order
dated
1632 INDIAN LAW REPORTS ALLAHABAD SERIES
15.11.2011-Restriction of benefit to 20% posts-No promotional avenues-Arbitrariness-DiscriminationViolation of Article 14-Government Order quashed.

Administrative Law-Withdrawal of financial benefits already granted-Requirement of prior notice and
opportunity-Unilateral withdrawal impermissible-Impugned order non-speaking-Reasons cannot be
supplemented by counter affidavit.

Service Jurisprudence-Recovery of excess payment-Wrongful grant of financial upgradation-Doctrine of
equity-Recovery permissible if excess detected within reasonable time-Interim orders-No vested rightExcess amount recoverable subject to principles laid down by Supreme Court.

Constitution of India-Article 14-Arbitrariness-Unequal treatment-Promotional benefits confined to select
percentage without justification-Held unsustainable.

Case Law Relied On
State of Punjab v. Rafiq Masih, (2015) 4 SCC 334
Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475
Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18
Shyam Babu Verma v. Union of India, (1994) 2 SCC 521

Ratio Decidendi-
(i) Once recommendations of a duly constituted Committee granting financial upgradation are implemented,
their withdrawal without affording opportunity of hearing to the beneficiaries is violative of natural justice.
(ii) Ad-hoc service is liable to be counted for promotional pay scale after regularization, in terms of
Government Orders dated 05.02.1998 and 18.06.2010.
(iii) Restricting promotional benefits to a fixed percentage of posts, in absence of promotional avenues and
without justification, is arbitrary and discriminatory.
(iv) Recovery of excess payment is permissible where wrongful benefit is detected within a short span of time,
subject to equitable considerations.

CONCLUSION:
Impugned order dated 10.03.2011 and Government Order dated 15.11.2011 quashed. Matter
remitted to newly constituted Committee for fresh review. Excess payments, if any, directed to be recovered
in accordance with law.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. In this group of writ petitions, the petitioners have challenged the order dated 10.03.2011
by which the Director, Ayurvedic Services, U.P. Lucknow (hereinafter referred to as 'the Director')
has withdrawn the recommendation granted by the Committee giving promotional pay scale. For
facility, the facts of writ petition no. 29360 of 2011 filed by Pradeshik Chikitsa Avam Samudayik
Sewa Sangh is taken into consideration. The petitioners in Writ Petition No. 67496 of 2011 have
also challenged the Government Order dated 15.11.2011, by which the State Government has
withdrawn the earlier Government Order dated 18.06.2010.

2. The Union of doctors contends that it's members were appointed as Medical Officer
(Community Health) under the Director of Ayurvedic Services, U.P.Lucknow on ad-hoc basis in
the year 1986 and are posted at various Primary Health Centres in various districts of State of Uttar
5 All. Pradeshik Chikitsa Avam Samudayik Sewa Sangh Vs State Of U.P. & Ors.

1633
Pradesh. It is contended that the services of the doctors are governed by the provisions of Uttar
Pradesh State Medical and Community Health (Group 'A' & 'B') Service Rules, 2003, in which the
appointing authority is the Governor of Uttar Pradesh. Subsequently, their services were
regularized under the provision of U.P. Regularization of Ad-hoc Appointments(On the Post
Within The Purview of Public Service Commission) Rules, 1979 as amended from time to time.
Pursuant to the recommendation of the 5th Pay Commission, the State Government issued a
Government Order dated 03.06.1989 providing promotional pay scale without actual promotion to
avoid stagnation of the employees upon completion of 08 years,14 years and 19 years of service.
Upon completion of 08 years, the first promotional pay scale was granted. Subsequently, the
Director by a letter dated 31.08.2009, addressed to the State Government made a request for
releasing the second promotional pay scale to the doctors upon completion of 14 years of service.
At this stage, a dispute arose as to whether ad-hoc period would be counted for the purpose of
releasing the promotional pay scale. This controversy was settled by the State Government by
issuance of a Government Order dated 05.02.1998. Subsequently, by a Government Order dated
18.06.2010, the State Government clarified that the services of the doctors on ad-hoc basis would
be counted for providing the benefit of promotional pay scale after completion of 08 years, 14 years
and 19 years but the said benefit would be released only after the Medical Officers are regularized
on their post (s).

3. Pursuant to the 6th Pay Commission, a new scheme of promotional benefit on personal
basis was introduced known as Assured Career Progressive Scheme (ACP). The State Government
in order to implement the ACP, issued a Government Order dated 05.11.2009 but the same was
cancelled and a fresh Government Order was issued on 04.05.2010, which provided that the new
scheme of ACP would be applicable from 01.12.2008. Under this scheme, the promotional benefit
was to be given upon completion of 10 years, 18 years and 26 years of service. Under this
Government Order dated 04.05.2010, a Committee was to be constituted by the Director,Ayurvedic
Services and this Committee was to make recommendations to the competent authority or the
authority competent to sanction financial upgradation. The recommendations were required to be
accepted by the appropriate authority or the accepting authority. Based on this Government Order
dated 04.05.2010, the Director constituted a Committee. This Committee made certain
recommendations, which were accepted by the Director and the third promotional scale, upon
completion of 26 years of service, was released. The members of the petitioners' Sangh started
enjoying the benefits. The petitioners contend that the Director by an order dated 05.01.2011 for
reasons best known to him dissolved the Committee on the ground that it was not functioning
properly and subsequently, by another order dated 10.03.2011 withdrew the recommendation
issued by this Committee on the sole ground that the Committee was not functioning properly. The
Sangh and other members, being aggrieved by the withdrawal of the recommendation that had
already been implemented, has filed the present writ petition.

4. The State Government had issued a Government Order dated 05.02.1998 clarifying that
the promotional benefit would be given upon completion of 08 years of service provided the
incumbent had been regularized in service. If the incumbent had not been regularized, then the
promotional scale would be given only when the employee was regularized. This Government
1634 INDIAN LAW REPORTS ALLAHABAD SERIES
Order was clarified by another Government Order dated 18.06.2010 indicating that the ad-hoc
period would be counted towards regular services pursuant to the order of regularization. The State
Government thereafter further issued another Government Order dated 15.11.2011 clarifying that
personal pay scale would be admissible after counting the services rendered on ad-hoc basis but on
the date of giving benefit, it would be necessary that the concerned person holding the post should
have been regularized in service. Paragraph 3 of the Government Order further clarified that if
regularization had not been made upto the date of completion of 08 years of service, the personal
pay scale would be given from the date of regularization. This Government Order also clarified that
only 20% of the promotional post would be utilized for the purpose of giving the second
promotional pay scale. This Government Order led to the filing of writ petition no.67496 of 2011.

5. On these facts, we have heard Sri Ashok Khare, the learned Senior Advocate along with
Sri B.G.Bhai Tripathi, the learned counsel for the petitioners and the learned Standing Counsel for
the respondents.

6. The counter affidavit reveals a mini scam which was unearthed by the State
Government. It was contended that the recommendation made by the Committee was required to be
approved by the State Government, which was not done in the instant case and consequently, all
the recommendations made by the Committee were wholly illegal and rightly withdrawn by the
Director. It was also contended that the benefit of promotional scheme pursuant to the Government
Order dated 04.05.2010 was required to be given with effect from 01.12.2008 but was wrongly
given with effect from 01.01.2006 and, therefore, the excess benefit given was liable to be
recovered from the Medical Officers.

7. The affidavit filed in Writ Petition No. 32977 of 2011, from paragraph 18 onwards,
indicates that on account of the illegalities committed by the Committee, the Chief Secretary
constituted a three member Committee for making a preliminary enquiry. The preliminary enquiry
report suggested that the officers and employees of the Ayurved Directorate were involved along
with two members of the Screening Committee. The affidavit further reveals that disciplinary
proceeding against the members of the Committee as well as against the Director has been
constituted and these persons have been placed under suspension. Further, employees of the
Directorate, who were found responsible for granting promotional benefit from 01.01.2006
onwards have been suspended and disciplinary proceedings have been initiated. The affidavit
further indicates that on account of loss of crores of rupees being caused to the State exchequer, the
order of recommendation was withdrawn by the Director, which does not require interference by
the writ Court.

8. Upon a perusal of the Government Order dated 04.05.2010, we find that the Committee
was required to be constituted by the Director. Clause 5(4) of the Government Order indicates that
the Committee had to be constituted by the Cadre Controlling Authority, which in the instant case
is the Director. Consequently, the Director was justified in constituting the Committee and it is
wrong on behalf of the State Government to urge that it is the Government alone, who was
competent to constitute the Committee. The recommendation was to be made by the Committee,
5 All. Pradeshik Chikitsa Avam Samudayik Sewa Sangh Vs State Of U.P. & Ors.

1635
which was required to be approved either by the State Government or by the authority competent to
sanction financial upgradation. It has been urged that some recommendations were accepted by the
Director but majority of the recommendations given by the Committee was not placed before the
Director and that the financial controller, on its own, released the benefits pursuant to the
recommendations given by the Committee. The learned Standing Counsel has thus tried to justify
the withdrawal of the recommendation on this ground itself.

9. We are unable to accept this assertion. The impugned order does not speak on this
aspect. The impugned order dated 10.03.2011 only indicates that the recommendation was being
withdrawn because the Committee was not functioning properly. The reasons for withdrawal of the
recommendation could have been the basis which have been indicated in the counter affidavit but
the same cannot be culled out from the impugned order.

10. We are of the opinion that when it is admitted by the State Government that the
recommendations of the Committee was implemented and the benefit was passed on to the doctors,
the same cannot be withdrawn unilaterally without giving a notice to the doctors. In our opinion,
the withdrawal of the recommendation after it was implemented without giving due notice to the
doctors is in violation of the principles of natural justice. The impugned order dated 10.03.2011, on
this short ground cannot be sustained and is quashed.

11. We find that the State Government had issued a Government Order dated 05.02.1998,
which indicated that upon completion of 08 years of service, if the incumbent was not regularized,
promotional benefit would only be given when the incumbent was regularized. This Government
Order dated 18.06.2010 clarified that the ad-hoc period would be counted towards regular service
but only pursuant to the order of regularization. We find that there was no need for further
clarification as the Government Orders dated 05.02.1998 and 18.06.2010 clearly clarified the stand
of the State Government, namely, that ad-hoc period would be counted for providing promotional
pay scale. The only embargo was that the benefit would be made available pursuant to the order of
regularization. In the light of the aforesaid, the withdrawal of the government notification dated
18.06.2010 by the impugned Government Order dated 15.11.2011 will not help the matter so long
as the Government Order dated 05.02.1998 exists. Paragraph 3 of the Government Order dated
15.11.2011 indicates that personal pay scale would be given from the date of regularization leaving
out ad-hoc period, which is against the Government Order dated 05.02.1998. We further find that
the Government Order dated 15.11.2011 provides that the promotional pay scale would be given to
only 20% incumbents. No justification has been given by the State Government in the counter
affidavit as to why the State Government is confining the promotional scheme to only 20% of the
posts. Admittedly, there are no promotional avenue to the Medical Officers. A Medical Officer gets
appointment as a Medical Officer and retires as a Medical Officer and if promotional benefit is
given to only 20%, the remaining would suffer irreparable loss and discrimination. Such
discrimination cannot be allowed to stand. The Government Order dated 15.11.2011 confining the
promotion to only 20% of the posts is arbitrary and cannot be sustained. The impugned
Government Order dated 15.11.2011 is, accordingly, quashed.
1636 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Even though the reliefs sought by the petitioners have been given, the courts cannot
lose sight of the irregularities pointed out by the State Government. Undue benefits, if any, cannot
be granted to the Medical Officers. Largesse cannot be distributed in a manner which brings loss to
the State exchequer. If excess benefit has been given deliberately by a wrong recommendation of
the Committee, the same requires correction immediately and excess money paid is required to be
returned to the State Government.

13. Orders passed by an employer seeking recovery of monetary benefits wrongly extended
to the employees has been considered by the Supreme Court in a series of judgments. The Supreme
Court held that recovery can only be interfered with in cases where such recovery would result in a
hardship of a nature, which would far outweigh, the equitable balance of the employer's right to
recover. In the case of State of Punjab and others Vs. Rafiq Masih and others, (2015) 4 SCC
334, the Supreme Court held that the interference would be called for only in such cases where it
would be iniquitous to recover the payment made. The parameters laid down in various decisions
was considered on the touchstone of the doctrine of equity defined in Articles 14 to 18 of the
Constitution of India. The Supreme Court in Rafiq Masih (Supra) held that an action of the State,
ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to
the extent that the action of recovery would be more unfair, more wrongful, more improper, and
more unwarranted, than the corresponding right of the employer, to recover the amount, or in other
words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it
would be permissible in law.

14. In Syed Abdul Qadir Vs. State of Bihar, (2009) 3 SCC 475, the Supreme Court held
that the relief against the recovery is granted by the courts not because of any right in the
employees but in equity, exercising judicial discretion to relieve the employees from the hardship
that will be caused if recovery is ordered. The Supreme Court held that if in a given case, it is
proved that the employee had knowledge that the payment received was in excess of what was due
or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong
payment, in that event, the recovery of the payment made was justified. Similar view was reiterated
by the Supreme Court in Sahib Ram Vs. State of Haryana, 1995 Supp (1) SCC 18 and Shyam
Babu Verma Vs. Union of India, (1994) 2 SCC 521.

15. Taking a clue from these cases, the Supreme Court in Rafiq Masih (Supra) reiterated
the aforesaid proposition, namely, that when the excess unauthorised payment is detected within a
short period of time, it would be open for the employer to recover the same. Conversely, if the
payment had been made for a long duration of time, it would be iniquitous to make any recovery
and such recovery would be an arbitrary action in violation of Article 14 of the Constitution of
India. The Supreme Court in Rafiq Masih (Supra) further defined as to what would constitute a
short period of time. The Supreme Court held that if the excess payment is detected within five
years, it would be open to the employer to recover the same.

16. In the instant case, the Government issued the Government Order on 04.05.2010
introducing the ACP. The promotional scheme was implemented soon thereafter. Immediately
5 All. Pradeshik Chikitsa Avam Samudayik Sewa Sangh Vs State Of U.P. & Ors.

1637
thereafter the irregularities were detected and the recommendations were withdrawn. The
petitioners approached the writ Court. An interim order was passed in 2011, as a result, the
petitioner continued to avail the benefit. In the light of the aforesaid decision of the Supreme
Court, we are of the view that the excess payment, if any, was detected within a short span of
time. If it is found that excess money has been paid, the same, in our opinion is liable to be
recovered from the petitioners. The petitioners cannot be benefited from an interim order. The
interim order only kept the impugned order in abeyance. Even though we have quashed the
impugned orders, the promotional benefit as per the Government Order dated 04.05.2010 has to
be implemented. If excess payment has been made, the same will have to be returned to the
Government.

17. During the course of argument, the Court was informed that the State Government
constituted a fresh Committee on 04.01.2013 for implementation of ACP scheme. Nothing has
been brought on record as to what work this Committee has done. Since various irregularities has
been pointed out with regard to the implementation of promotional scheme and it has been urged
that wrongful benefit has been given retrospectively, we dispose of the writ petition with the
following directions:

18. (i)The Committee constituted by the State Government on 04.01.2013 will review all
the recommendations made by the previous committee in each individual cases.

(ii) If the recommendation given by the previous Committee is found to be proper,
the Committee will affirm the recommendations.

(iii) If the Committee finds irregularities in the recommendations given by the
previous Committee, it will issue a notice to the individual doctor to show cause as to why the
benefit so granted should not be recovered. Upon such reply being received, the Committee will
pass an appropriate order affirming, modifying or withdrawing the recommendations.

(iv) If the Committee finds that the recommendation was not approved by the
Director but finds that the recommendations were genuine, the Committee will affirm, or approve
or grant post facto approval of such recommendations.

(v) If the Committee finds that excess payment was made to the doctors, the same
would be recovered from the recipients, namely, the doctors, who have been given such benefit.

(vi) Such recovery would be made from their salary in installments, and if, in the
meanwhile, the said doctors have retired, the same shall be recovered from their post retiral
benefits.

(vii) Such exercise shall be carried out by the Committee within six months from
the date of receipt of a certified copy of this order.
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1638 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2016

BEFORE

THE HON'BLE TARUN AGARWALA. J.
THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

 Writ A No.- 43421 Of 2015

State Of U.P. & Ors. ...Petitioners
Versus
Subh Karan Singh Gautam & Anr. ...Respondents

Head Notes:
Service Law-Adverse Annual Confidential Reports-U.P. Government Servants (Disposal of
Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995Rules 4 & 5-Non-communication of adverse entry within stipulated period-Delay in disposal of
representation-Effect-Scope of Rule 5-Whether adverse entry becomes illegal or liable to be
quashed-Held, No-Rule 5 only bars consideration of adverse entry for promotion, efficiency bar
and other service matters-Adverse entry once communicated remains operative-Tribunal
misreading Rule 5-Order quashing adverse entries unsustainable-Respondent already retiredNo purpose in remand-Tribunal's order set aside-Writ petition allowed.

Facts
Respondent No.1, a Senior Cane Development Inspector, was awarded adverse entries:

for the year 1991 on 10.01.1994;

for the years 1986-87 and 1987-88 by order dated 17.05.1995, pursuant to disciplinary proceedings.

Representation against adverse entries was rejected on 06.07.1996.

Respondent filed a claim petition before the Tribunal.

The Tribunal, by order dated 28.01.2015, quashed the adverse entries on the ground of:

non-communication within prescribed period; and

non-disposal of representation within time as required under Rules 4 & 5 of the Rules, 1995.

Aggrieved, the State of U.P. filed the present writ petition.

Issues:
Whether non-communication of adverse entry within the time prescribed under Rule 4 renders the adverse
entry illegal.

Whether non-disposal of representation within stipulated time mandates quashing of adverse entry.