# Shiv Ram v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-19
- **Case number:** Civil Misc. Writ Petition No. 37681 of 2005
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-ram-v-state-of-u-p-and-others-41489
- **Pages:** 3

## Headnote

Constitution of India-Art. 226-Recovery
of Salary-petitioner working as peon-by
impugned order dated 4.9.04-allowed to
work upto 31.08.2004 treating notionally
retire w.e.f. 01.07.1998 itself goes to
show
continuous
working
w.e.f.01.07.1998
to
31.08.04-No
allegation of concealment of fact or
fraud
by
petitioner-No
question
of
recovery of Salary given during those
period-direction for release of retirement
benefits within 3 months on basis of
impugned order itself-given.

Held: Para 6

From
the
impugned
order
dated
4.9.2004, it is evident that the petitioner
has been made to retire in fact on
31.8.2004 and notionally w.e.f. 1.7.1998.
It
is,
therefore,
evident
that
the
petitioner was allowed to continue in
service by the respondents between
1.7.1998 and 31.8.2004 during which
period he has performed his duty. There
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
is
no
indication
of
any
fraud
or
misrepresentation on the part of the
petitioner. In such a situation, it is
observed that the respondents shall not
proceed to make any recovery of salary if
the same has been actually paid to the
petitioner between the period 1.7.1998
to 31.8.2004. I am supported in my view
from the decision in the case of Union of
India
and
others
Vs.
Central
Administrative Tribunal, Allahabad, and
another, 2003 (4) ESC 2006 and in the
case of Duryodhan Lal Jatav Vs. State of
U.P. and others, 2005 (2) ALJ 1141. The
contention
raised
by
the
learned
Standing Counsel has, therefore, to be
rejected on this count.

## Text

1 All] Shiv Ram V. State of U.P. and others
381
appropriate places, which will maintain
the ecological balance so that both the
development as well as ecological balance
cannot be suffered.

12. Therefore, the suggestion in the
form of letter, as given by the Chief
Development
Officer,
seems
to
be
appropriate. Therefore, on the basis of
that suggestion of Chief Development
Officer, if the pond is being made, that
can be done as expeditiously as possible.
However, even having such suggestion
for construction of pond in a place other
than the place of pond which has been
converted for the public purpose, if the
writ petitioners feel aggrieved then it
clearly indicates that in the back of
making this writ petition, the public
interest is not there but some sort of
private interest is there, which cannot be
encouraged by the Court. It is well settled
that complainant cannot make such
petitions and hence on both the accounts,
we dismiss the writ petition filed in the
form
of
Public
Interest
Litigation,
however, without imposing any cost
considering the facts and circumstances of
the case.

13. In any event, passing of this
order will in no way affect the right of the
parties to approach the concerned District
Magistrate for a decision in this respect, at
the earliest.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 37681 of 2005

Shiv Ram

...Petitioner
Versus
State of U.P. Secy' Revenue U.P. and
others

 ...Respondent

Counsel for the Petitioner:
Sri R.S. Parihar
Sri B.D. Mishra
Sri D.K. Jaiswal
Sri Santosh Shukla

Counsel for the Respondents:
C.S.C.
Sri V.K. Chandel
Sri V.K.S. Chandel

Constitution of India-Art. 226-Recovery
of Salary-petitioner working as peon-by
impugned order dated 4.9.04-allowed to
work upto 31.08.2004 treating notionally
retire w.e.f. 01.07.1998 itself goes to
show
continuous
working
w.e.f.01.07.1998
to
31.08.04-No
allegation of concealment of fact or
fraud
by
petitioner-No
question
of
recovery of Salary given during those
period-direction for release of retirement
benefits within 3 months on basis of
impugned order itself-given.

Held: Para 6

From
the
impugned
order
dated
4.9.2004, it is evident that the petitioner
has been made to retire in fact on
31.8.2004 and notionally w.e.f. 1.7.1998.
It
is,
therefore,
evident
that
the
petitioner was allowed to continue in
service by the respondents between
1.7.1998 and 31.8.2004 during which
period he has performed his duty. There
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
is
no
indication
of
any
fraud
or
misrepresentation on the part of the
petitioner. In such a situation, it is
observed that the respondents shall not
proceed to make any recovery of salary if
the same has been actually paid to the
petitioner between the period 1.7.1998
to 31.8.2004. I am supported in my view
from the decision in the case of Union of
India
and
others
Vs.
Central
Administrative Tribunal, Allahabad, and
another, 2003 (4) ESC 2006 and in the
case of Duryodhan Lal Jatav Vs. State of
U.P. and others, 2005 (2) ALJ 1141. The
contention
raised
by
the
learned
Standing Counsel has, therefore, to be
rejected on this count.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Deepak Jaiswal, learned
counsel for the petitioner, who has at the
outset made a request that the petitioner
does not want to press relief clause (I)
which is for quashing of the order dated
4.9.2004. He, however, prays that an
observation be made to the effect that
salary paid for the period worked may not
be recovered. The dispute relates to the
correct date of birth of the petitioner who
retired as a peon. The petitioner's servicebook which was prepared in 1963
indicates that he was 25 years of age then,
but the date of birth claimed is 1.9.1948.
The authority came to the conclusion that
taking the age of the petitioner as 25 years
in 1963 the petitioner was born in 1938
and is, therefore, liable to retire at the age
of 60 years in 1998.

2. Sri Jaiswal contends that treating
the said order dated 4.9.2004 to be valid
even otherwise the petitioner is entitled
for certain benefits which have been
withheld so far. He submits that the same
may be directed to be released in case the
same is admissible to the petitioner. Sri
Jaiswal further invited the attention of the
Court to paragraph no.11 of the counteraffidavit, where it has been stated the
pension papers, in accordance with order
dated
4.9.2004,
have
already
been
forwarded to the Senior Treasury Officer,
Etawah, on 31.3.2005 which is still
awaiting finalization.

3. A supplementary-Affidavit has
been filed copy whereof has been served
on the learned Standing Counsel today
stating therein that there is every
likelihood of recovery of salary from the
petitioner
for
the
period
between
30.6.1998 to 31.7.2004 and the petitioner
shall suffer irreparable loss.

4. Learned counsel Sri Jaiswal
submits that he does not want any other
benefit out of the order dated 4.9.2004
and the petitioner is prepared to accept the
calculation of pension on the strength of
the said order dated 4.9.2004 but an
observation be made that no recovery of
salary may be made from the petitioner.

5. Learned Standing Counsel
contends that there is no order or direction
for recovery of salary and, therefore, no
observation is required to be made and
even otherwise in law the petitioner is
liable to return the salary for the said
period. Sri Jaiswal, learned counsel for
the petitioner, contends that the petitioner
has continued to work till 31.7.2004 and
in such a situation if the salary is
recovered, the petitioner shall be put to
irreparable loss. He submits that there was
no fraud or misrepresentation on the part
of the petitioner and, therefore, recovery
cannot be made.

6. From the impugned order dated
4.9.2004, it is evident that the petitioner
1 All] Dr. Ravi Prakash Dwivedi V. State of U.P. and others
383
has been made to retire in fact on
31.8.2004 and notionally w.e.f. 1.7.1998.
It is, therefore, evident that the petitioner
was allowed to continue in service by the
respondents
between
1.7.1998
and
31.8.2004 during which period he has
performed his duty. There is no indication
of any fraud or misrepresentation on the
part of the petitioner. In such a situation,
it is observed that the respondents shall
not proceed to make any recovery of
salary if the same has been actually paid
to the petitioner between the period
1.7.1998 to 31.8.2004. I am supported in
my view from the decision in the case of
Union of India and others Vs. Central
Administrative Tribunal, Allahabad, and
another, 2003 (4) ESC 2006 and in the
case of Duryodhan Lal Jatav Vs. State of
U.P. and others, 2005 (2) ALJ 1141. The
contention raised by the learned Standing
Counsel has, therefore, to be rejected on
this count.

7. Apart from this, no other relief
can be granted to the petitioner as he has
conceded to the order dated 4.9.2004. The
calculation of pension shall, therefore, be
made on the basis of the order dated
4.9.2004.

8.

Learned
Standing
counsel
contends that in view of this conceded
position by the petitioner, the writ petition
be disposed of finally at this stage.

9. In view of the aforesaid
submissions advanced at the Bar and the
observations made herein above, this writ
petition is disposed of with a direction to
the respondent No.2 to proceed to finalize
the claim of the petitioner and issue
necessary
directions
to
the
Senior
Treasury Officer, to whom the papers
have already been forwarded and make
payment to which he is entitled in
accordance with law as expeditiously as
possible preferably within a period of 3
months from the date of production of a
certified copy of this order before him.

10. The petitioner may serve a copy
of this order on the said respondents along
with his specific claim in respect of the
emoluments which are due to him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 53094 of 2007

Dr. Ravi Prakash Dwivedi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.D. Shukla
Sri Ashok Khare
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.
Sri Anil Kumar Srivastava
Sri Gautam Baghel
Sri I.A. Siddiqui
Sri M.A. Qadeer
Sri Pushpendra Singh
Sri P.S. Baghel

U.P. Veterinary Group-B Service Rules
1998-Rule
8
(2)-cancellation
of
candidature-on ground petition was not
registered State of U.P. under Section 23
of Indian Veterinary Council Act 1984admittialy
petitioner
possess
every
requisite
qualification-duly
registered
with Jharkhand-under Section 49 and 54
of Act 1984-after depositing certain