# S.N. Vishwakarma & others v. State of U.P and others

- **Citation:** (2006) 2 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-08
- **Case number:** Civil Misc. Writ Petition No.35289 of 2001
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-n-vishwakarma-others-v-state-of-u-p-and-others-40630
- **Pages:** 5

## Headnote

Constitution of India Art. 226- Salary
fixation
-work
charge
employeesregularised between 1996 to December
97-revise pay scale salary fixed on the
basis of G.O. 23.12.97 and 31.12.97-all
the petitioner given salary benefits-by
subsequent G.O. 26.8.99-by order dated
20.9.01 again fixation made denying the
benefit of 40% D.A, interim reliefs etc.-
held-the authorities can not recover the
excess amount on two counts firatly
when fixation made-only G.O. 31.12.97
was in existence-secondly No case of mis
representation on part of Petitionersthirdly before impugned fixation no
notice or opportunity given-impugned
order
quashed-with
consequential
direction.

Held: Para 8

I have perused the government order
dated 26.8.1999. The said government
order provides for maximum ceiling of
salary of work charge employees. No
other
specific
provision
in
the
government order is made that work
charge employee shall not be entitled for
the dearness allowance or interim relief
or their salary shall be fixed in a
particular manner. The counsel for the
respondent
has
submitted
that
the
government
order
dated
23.12.1997
specifically provided that 40% of salary
will be added with regard to government
employees
which
provisions
is
not
available for the work charge employee
as
per
government
order
dated
26.8.1999. There is no specific mention
in
the
government
order
dated
26.8.1999 that work charge employees
shall not be entitled for 40% of salary.
However, without entering into any
further discussion on the said issue there
are two reasons on which I am satisfied
that respondents are not entitled for
recovery
of
any
amount
from
the
petitioner. Firstly, the government order
dated 26.8.1999 was issued subsequent
to the fixation which was already made
on 28.1.1998. The dispute of payment of
salary in the present case relates only to
the
period
dated
1.1.1996
till
regularisation
of
the
petitioners
i.e
between 1996 to 31.12.1997. At the time
when fixation of the petitioners was
made
the
government
order
dated
23.12.1997 and dated 31.12.1997 were
the only government order providing for
fixation and the salary of the petitioners
was fixed in accordance with the said
government order. There is no case of
any mis-representation on part of the
petitioners in getting their salary fixed.
Hence, no recovery can be made from
the amount which was already paid to be
petitioners in pursuance of the fixation
made by the Executive Engineer dated
28.1.1998.
Case law discussed:
AIR 1994 SC-2480 SC
W.P. No. 7201 of 04 decided on 5.6.05
652 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
W.P. No.31466 of 03 decided on 28.10.05

## Text

2 All] S.N. Vishwakarma and others V. State of U.P. and others
651
23. Thus, we are of the view that the
Hon'ble
Single
Judge
has
rightly
dismissed the writ petition of the
appellant and the judgment under appeal
needs no interference.

24. In the circumstances, the appeal
fails and is hereby dismissed. No order as
to costs.

 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2006

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No.35289 of 2001

S.N. Vishwakarma & others ...Petitioners
Versus
State of U.P and others ...Respondents

Counsel for the Petitioners:
Sri L.C. Srivastava

Counsel for the Respondents:
Sri Vijendra Singh Yadav
S.C.

Constitution of India Art. 226- Salary
fixation
-work
charge
employeesregularised between 1996 to December
97-revise pay scale salary fixed on the
basis of G.O. 23.12.97 and 31.12.97-all
the petitioner given salary benefits-by
subsequent G.O. 26.8.99-by order dated
20.9.01 again fixation made denying the
benefit of 40% D.A, interim reliefs etc.-
held-the authorities can not recover the
excess amount on two counts firatly
when fixation made-only G.O. 31.12.97
was in existence-secondly No case of mis
representation on part of Petitionersthirdly before impugned fixation no
notice or opportunity given-impugned
order
quashed-with
consequential
direction.

Held: Para 8

I have perused the government order
dated 26.8.1999. The said government
order provides for maximum ceiling of
salary of work charge employees. No
other
specific
provision
in
the
government order is made that work
charge employee shall not be entitled for
the dearness allowance or interim relief
or their salary shall be fixed in a
particular manner. The counsel for the
respondent
has
submitted
that
the
government
order
dated
23.12.1997
specifically provided that 40% of salary
will be added with regard to government
employees
which
provisions
is
not
available for the work charge employee
as
per
government
order
dated
26.8.1999. There is no specific mention
in
the
government
order
dated
26.8.1999 that work charge employees
shall not be entitled for 40% of salary.
However, without entering into any
further discussion on the said issue there
are two reasons on which I am satisfied
that respondents are not entitled for
recovery
of
any
amount
from
the
petitioner. Firstly, the government order
dated 26.8.1999 was issued subsequent
to the fixation which was already made
on 28.1.1998. The dispute of payment of
salary in the present case relates only to
the
period
dated
1.1.1996
till
regularisation
of
the
petitioners
i.e
between 1996 to 31.12.1997. At the time
when fixation of the petitioners was
made
the
government
order
dated
23.12.1997 and dated 31.12.1997 were
the only government order providing for
fixation and the salary of the petitioners
was fixed in accordance with the said
government order. There is no case of
any mis-representation on part of the
petitioners in getting their salary fixed.
Hence, no recovery can be made from
the amount which was already paid to be
petitioners in pursuance of the fixation
made by the Executive Engineer dated
28.1.1998.
Case law discussed:
AIR 1994 SC-2480 SC
W.P. No. 7201 of 04 decided on 5.6.05
652 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
W.P. No.31466 of 03 decided on 28.10.05

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioners
and
Shri
Vijendra
Singh
Yadav,
Additional
Chief
Standing
Counsel
appearing for the respondents. Counter
and
rejoinder
affidavits
have
been
exchanged and with the consent of the
parties, the writ petition is being finally
disposed of.

2. By this writ petition, the
petitioners have prayed for a writ of
certiorari quashing impugned fixation
order
dated
20.9.2001.
A
writ
of
mandamus
has
also
been
sought
commanding the respondent to pay the
salary to the petitioners as per fixation
order dated 28.1.1998. It is further prayed
that the direction be issued to the
respondents restraining them from making
any recovery pursuant to the impugned
order.

3. Brief facts necessary for deciding
the writ petition are; All the petitioners
were working as work charge employees
in the Irrigation Department of the State.
All the petitioners are working as ClassIV employee on different post. The
petitioners were appointed on various date
between 1.8.1977 to December 1979. All
the petitioners have also been regularised
in the regular establishment of the
Irrigation Department from different dates
in the year 1996-1997. On the basis of
recommendations
of
Vth
Pay
Commission, the pay scale of the Work
Charge employees was revised with effect
from 1.1.1996 vide Government Order
dated 26.8.1999. The Government Order
dated
26.8.1999
also
provided
a
maximum ceiling of salary with regard to
work charge employees which maximum
ceiling had been fixed from time to time
by various earlier government orders.
Apart from these work charge employees
on the basis of Vth pay Commission, the
pay scale of all other Government
employees in the irrigation department
were revised. The Government orders
were issued for fixation of salary in the
revised pay scale dated 23.12.1997 and
31.12.1997 providing the manner and
procedure of fixation of salary in the
revised pay scale. The petitioners salary
was fixed by order dated 28.1.1998 on the
basis
of
Government
Order
dated
31.12.1997 and 21.12.1997 with effect
from 1.1.1996. The petitioners were being
paid salary in accordance with fixation
dated 20.1.1998.

4. The petitioners were subsequently
also
regularised
on
Class-IV
establishment with effect from different
dates in the year 1996-1997. After their
regularisation the petitioners are getting
their salary in the revised pay scale and
there is no dispute in the present writ
petition with regard to fixation and
payment of salary to the petitioners after
they have been regularised in Class-IV
establishment. It appears that on the basis
of audit objection, the petitioner's salary
were re-fixed with effect from 1.1.1996
by
an
order
dated
20.9.2001.
By
subsequent order dated 20.9.2001 the
petitioners salary was re fixed from
1.1.1996. The salary fixed by subsequent
order dated 20.9.2001 is less than the
salary which was earlier fixed by order
dated 28th of January 1998. After the said
fixation,
the
petitioner
submitted
a
representation dated 11.10.2001 to the
Executive Engineer objecting to re
fixation of their salary and reduction of
their salary with effect from 1.1.1996.
2 All] S.N. Vishwakarma and others V. State of U.P. and others
653
The petitioner objected to re-fixation
dated 20.9.2001 and prayed that their
fixation as made on 28.1.1998 be allowed
to continue.

5. The learned counsel for the
petitioner challenging the impugned order
submitted that petitioners' salary was
rightly fixed on 28.1.1998 in pursuance of
the Government order dated 23.12.1997
and 31.12.1997. He further submits that
with regard to fixation of salary of Work
Charge employees, there was no other
Government Orders and the same manner
and procedure is applicable with regard to
the fixation of salary of work charge
employees. He further submits that in any
view of the matter, no recovery can be
made from the petitioner since there was
no fraud or mis representation at the
instance of the petitioner in their fixation
dated 20.1.1998 and the fixation dated
20.1.1998 was made by the respondent
themselves applying the Government
Order
dated
23.12.1997
and
dated
31.12.1998. The counsel for the petitioner
further submits that several employees
who were also work charge employees
and were regularised along with the
petitioners, no recovery has been directed
where as from the petitioners the recovery
has been directed, the said averments
have been made in paragraph-7 of the
rejoinder affidavit.

6. Shri Vijendra Singh Yadav,
learned Chief Standing Counsel appearing
for the respondents refuted the submission
of the counsel for the petitioner and
submitted that subsequent fixation has
rightly been made. He submits that with
regard to fixation of salary of work charge
employees another Government Order
dated 26.8.1999 has been issued and the
salary of the work charge employees was
required to be fixed in accordance with
the Government Order dated 26.8.1999
and in view of the Government Order
dated 26.8.1999, the fixation of the
petitioners was rightly modified. The
learned counsel for the respondents
further submits that petitioners who were
working as work charge employees before
regularisation in the year 1996-1997, they
were not entitled 40% of their basic which
was payable to the regular government
employees. He further submits that the
salary of the work charge employee was
subject to maximum ceiling as prescribed
by the government order dated 26.8.1999.
The counsel for the respondents further
submitted that petitioners were not even
government employees, hence they were
not entitled for the benefit of fixation
which was applicable to the government
order dated 23.12.1997 and 31.12.1997.

7. I have considered the submissions
of the counsel for the petitioners and
perused the record.

8. There is no dispute between the
parties that petitioners were working as
work charge employees on 1.1.1996 and
they
were
regularised
in
regular
establishment of the irrigation department
from different dates in the year 19961997. The issue which has been raised in
the writ petition is with regard to fixation
of salary of the work charge employees
with effect from 1.1.1996.The fixation of
the petitioners salary was made by order
of
the
Executive
Engineer
dated
20.1.1998. Copy of which order has been
filed as annexure 6 to the writ petition.
The fixation was made from 1.1.1996 in
the
revised
pay
scale
which
was
applicable to the work charge employees
with effect from 1.1.1996. It is not the
case of the parties that salary of work
654 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
charge employees was not revised from
1.1.1996. Salary of regular employees
working in the Irrigation Department as
well as work charge employees working
in the Irrigation Department was revised
from 1.1.1996. The question arises only
of fixation. The Government Order dated
23.12.1997 and dated 31.12.1997 have
been issued by the State Government for
fixation of salary of the Government
employees. The said government orders
are on the record. The Government Order
dated 23.12.1997 was issued for fixation
of salary to the government employees
with effect from 1.1.1996 in pursuance of
recommendation
of
the
Vth
Pay
Commissioner which was approved by
the State Government by the government
order dated 23.12.1997. The salary of
petitioners was also fixed in accordance
with
the
government
order
dated
23.12.1997 and 31.12.1997. There was no
other government order at the time when
petitioners salary was fixed apart from the
aforesaid
government
order
dated
23.12.1997
and
28.12.1997.
The
submission of Additional Chief Standing
Counsel
that
petitioners
were
not
government
employees
cannot
be
accepted. Petitioners were working in the
work charge establishment of Irrigation
Department. The petitioners were very
much the government employees may be
working
on
the
work
charge
establishment. The appointments were
made by Government Officers, their
salary was paid through state fund and
this submission has no substance that they
were not Government employees. Much
reliance
has
been
placed
on
the
Government Order dated 26.8.1999 which
according to learned counsel for the
respondents provides for different manner
of the fixation of salary of the work
charge employees. I have perused the
government order dated 26.8.1999. The
said government order provides for
maximum ceiling of salary of work
charge employees. No other specific
provision in the government order is made
that work charge employee shall not be
entitled for the dearness allowance or
interim relief or their salary shall be fixed
in a particular manner. The counsel for
the respondent has submitted that the
government
order
dated
23.12.1997
specifically provided that 40% of salary
will be added with regard to government
employees
which
provisions
is
not
available for the work charge employee as
per government order dated 26.8.1999.
There is no specific mention in the
government order dated 26.8.1999 that
work charge employees shall not be
entitled for 40% of salary. However,
without
entering
into
any
further
discussion on the said issue there are two
reasons on which I am satisfied that
respondents are not entitled for recovery
of any amount from the petitioner. Firstly,
the government order dated 26.8.1999
was issued subsequent to the fixation
which was already made on 28.1.1998.
The dispute of payment of salary in the
present case relates only to the period
dated 1.1.1996 till regularisation of the
petitioners
i.e
between
1996
to
31.12.1997. At the time when fixation of
the petitioners was made the government
order
dated
23.12.1997
and
dated
31.12.1997 were the only government
order providing for fixation and the salary
of the petitioners was fixed in accordance
with the said government order. There is
no case of any mis-representation on part
of the petitioners in getting their salary
fixed. Hence, no recovery can be made
from the amount which was already paid
to be petitioners in pursuance of the
fixation made by the Executive Engineer
2 All] Brahm Prakash V. State of U.P. and others
655
dated 28.1.1998. This view of mine finds
support
from
the
Division
Bench
judgement of this Court in writ petition
No.31466 of 2003 Naseem Ahmed
versus State of U.P & others decided on
28.10.2005. The Division Bench of this
Court
relying
on
two
apex
court
judgements have laid down-

"From the aforesaid decisions of the
apex court, it is clear that if any amount
has been paid to the petitioner by the
respondents
and
there
was
no
misrepresentation made by the petitioner
then the amount already paid could not be
recovered. There is no material on the
record
to
establish
that
any
misrepresentation was made by the
petitioner. The payment of arrears of
salary has been made by the Assistant
Soil Survey Officer on his own after
fixing the pay of the petitioner. We are of
the opinion that in view of the law laid
down by the apex court the respondents
could not recover the amount of arrears of
salary already paid to the petitioner on
1.2.2003 in pursuance of the order dated
9.12.2002, therefore, the impugned order
dated 28.4.2003 and 18.6.2003 cannot be
maintained."

9. With regard to the maximum
ceiling as provided by the government
order dated 26.8.1999, a recent judgement
of this Court has taken the view that
putting of maximum ceiling of payment
of salary to the work charge employee is
arbitrary. The said view has been taken by
this Court in writ petition No.7201 of
2004 (s/s) Yogesh Prasad and others
versus State of U.P & others decided on
6.5.2005. However, the learned counsel
for the respondents has fairly conceded
that in the present case, there is no dispute
regarding the ceiling as prescribed by the
government order dated 26.8.1999.

10. It is further to be noted that
while reducing the fixation made on
28.1.1998 petitioners were never put to
any notice or opportunity. The order for
reduction of their fixation as ex parte
made. The Apex Court in Bhagwan
Shukla & others versus Union of India
1994 SC AIR 2480 has held that
reduction of salary with retrospective
effect cannot be made without giving any
opportunity to the employee.

11. In view of the foregoing
discussion, the petitioners have made out
a case for grant of relief. The order dated
20.9.2001 annexure-8 to the writ petition
is quashed. The respondents are directed
not to recover any amount already paid to
the petitioners in pursuance of the fixation
dated 28.1.1998. The parties shall bear
their own cost.
 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2006

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 7520 of 2006

Brahm Prakash

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Akhtar Ali

Counsel for the Respondents:
Sri Q.R. Siddiqui
C.S.C.