# Sri Ram Manohar Kapoor v. State Of U.P. and others

- **Citation:** (2010) 2 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-06-01
- **Case number:** Civil Misc. Writ Petition No. 58855 of 2007
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ram-manohar-kapoor-v-state-of-u-p-and-others-41713
- **Pages:** 5

## Headnote

Constitution
of
India
Article
226recovery of excess amount from post
retiral benefits-whatever excess amount
given-on negligence of authorities-No
allegation
of
concealment
or
instrumental in getting excess amountcan not be recovered-for omission on
part of employer petitioner can not be
punished

Held Para 24

Moreover from the perusal of the orders
under challenge in the present case it is
crystal clear that respondent no.3 while
passing
the
impugned
order
dated
8.10.2007 has not given any findings
that whether there was any fault or
fraud played on the part of the petitioner
by
virtue
of
which
the
additional
dearness allowances was granted to him
at the rate of Rs. 219/- with effect from
1.8.1979 by means of order dated
6.2.1992, so the same is in contravention
to the order dated 4.4.2007 passed in
Special Appeal no. 656 of 2003 as well as
against the principles of natural justice.
Case Law Discussed:
1995 Supp (1) SCC 18; 2006 (4) ESC 2379
(AII) (DB); 1995 Supp (3) SCC 722; 1998 SCC
(L&S) 462; 1998 (2) SCC 589; 2000 SCC (L&S)
394; 2003 SCC (L&S) 90; 2005 (2) ESC 1067
(AII)

## Text

912 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

[MANU/SC/0408/2010] the Supreme Court
has held that the degrees awarded by
Sammelan after 1967 are not recognized
under the Indian Medicine Central Council
Act 1970, to authorize medical practice in
Indian Medicine. The Bihar Indian Medicine
Board has no authority to grant registration
on such degree, to allow a person to
practice in other States including in Uttar
Pradesh, vide Ayurvedic Enlisted Doctors
Association
Mumbai
Vs.
State
of
Maharashtra [JT 2009 (5) SCC 206 :
MANU/SC/0312/2009] and Nawab Khan
Vs. State of U.P. [(1999) 2 AWC 1150 (DB)].

The question raised are squarely covered by
judgement of the Supreme Court.
Case Law Discussed:
2004
(2)
AWC
967;
2000(5)
SCC
80;
MANU/SC/0408/2010; 2009 (5) SC 206; 1999 (2)
AWC 1150.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. List is revised. No one appears for
the petitioner. Sri J.K. Tiwari, learned
standing counsel appears for the respondents.

2. The petitioner has prayed for
directions to quash the notice dated
14.8.2009 issued by the Chief Medical
Officer
directing
unregistered
and
unqualified medical practitioner to produce
their Degrees and Registration and to
establish that they are practicing medicine on
the basis of their valid qualifications. The
directions were issued on 28.1.2004 in
Rajesh Kumar Srivastava Vs. State of
U.P. [2004 (2) AWC 967] in pursuance of
the order of this Court to enforcing directions
issued by the Supreme Court in D.K. Joshi
Vs. State of U.P. [(2000) 5 SCC 80].

3. The petitioner claims to be registered
with State Ayurvedic & Unani Chikitsa
Parishad, Bihar in pursuance to the Degree of
Ayurvedic Ratna, 1986 from Hindi Sahitya
Sammelan Prayag, Allahabad

4. The question whether Hindi Sahitya
Sammelan Prayag, Allahabad has the
authority to award medical qualifications
after 1967, has been considered by this Court
and the Supreme Court. In the judgment
dated 1.6.2010 in Rajasthan Pradesh V.S.
Sardarshahar & Another Vs. Union of
India & others [MANU/SC/0408/2010] the
Supreme Court has held that the degrees
awarded by Sammelan after 1967 are not
recognized under the Indian Medicine
Central Council Act 1970, to authorize
medical practice in Indian Medicine. The
Bihar Indian Medicine Board has no
authority to grant registration on such degree,
to allow a person to practice in other States
including in Uttar Pradesh, vide Ayurvedic
Enlisted Doctors Association Mumbai Vs.
State of Maharashtra [JT 2009 (5) SCC
206 : MANU/SC/0312/2009] and Nawab
Khan Vs. State of U.P. [(1999) 2 AWC
1150 (DB)].

5. The question raised are squarely
covered by judgment of the Supreme Court.

6. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2010

BEFORE
THE HON'BLE ANIL KUMAR, J.

Civil Misc. Writ Petition No. 58855 of 2007

Sri Ram Manohar Kapoor
 ...Petitioner
Versus
State Of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Yogish Kumar Saxena

Counsel for the Respondents:
C.S.C.
2 All] Sri Ram Manohar Kapoor V. State of U.P. and others
913
Constitution
of
India
Article
226recovery of excess amount from post
retiral benefits-whatever excess amount
given-on negligence of authorities-No
allegation
of
concealment
or
instrumental in getting excess amountcan not be recovered-for omission on
part of employer petitioner can not be
punished

Held Para 24

Moreover from the perusal of the orders
under challenge in the present case it is
crystal clear that respondent no.3 while
passing
the
impugned
order
dated
8.10.2007 has not given any findings
that whether there was any fault or
fraud played on the part of the petitioner
by
virtue
of
which
the
additional
dearness allowances was granted to him
at the rate of Rs. 219/- with effect from
1.8.1979 by means of order dated
6.2.1992, so the same is in contravention
to the order dated 4.4.2007 passed in
Special Appeal no. 656 of 2003 as well as
against the principles of natural justice.
Case Law Discussed:
1995 Supp (1) SCC 18; 2006 (4) ESC 2379
(AII) (DB); 1995 Supp (3) SCC 722; 1998 SCC
(L&S) 462; 1998 (2) SCC 589; 2000 SCC (L&S)
394; 2003 SCC (L&S) 90; 2005 (2) ESC 1067
(AII)

(Delivered by Hon'ble Anil Kumar,J.)

1. By means of the present writ
petition, the petitioner has challenged the
order dated 8.10.2007 passed by Finance
Controller, Public Works Department (
Pension Cell) Lucknow, opposite party no.3.

2. Heard Yogish Kumar Saxena,
learned counsel for the petitioner and the
learned Standing Counsel appearing on
behalf of the respondents.

3. In brief, the facts as submitted by the
learned counsel for the petitioner, are that the
petitioner was working as Junior Engineer in
the Public Works Department. During the
tenure of his service, respondent no.1 has
issued
a
Government
Order
dated
20.11.1979 by which additional dearness
allowance was given to the employees of
different category.

4. In pursuance of the said Government
Order, by means of order dated 6.2.1992 the
petitioner has been given dearness allowance
of Rs.219 with effect from 1.8.1979.
However, the petitioner was not satisfied
with the fixation of additional dearness
allowance at the rate of Rs. 219/-. As per his
version he was entitled for dearness
allowance at the rate of Rs. 224/- so he
submitted a representation in this regard to
respondent no.2 but nothing has been done in
the matter in question.

5. In the meantime, the petitioner
retired from service on 30.4.1995 after
attaining the age of superannuation. Further ,
when the post retiral benefits pension etc.
were not given to him , he filed a Civil Misc.
Writ Petition no. 26285 of 1995 for payment
of his post retiral benefits , disposed of by
order dated 26th September, 1995 with the
direction that the Engineer-in-Chief Public
Works Department , U.P. Lucknow shall
pass appropriate orders and direct the
subordinates that the petitioner's post
retirement benefit and claims be cleared
within two weeks from the date of filing of a
certified copy of the said order. Despite the
said directions given by this Court, the
Engineer-in-Chief,
Public
Works
Department, U.P. Lucknow , opposite party
no.2 did not pay any heed in the matter in
question as such the petitioner was
compelled to file a contempt petition.

6. Thereafter on 16.12.1995, the
opposite party no.2 has passed an order
thereby fixing additional dearness allowance
914 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

payable to the petitioner as Rs. 208.10 paisa
instead of Rs. 219/- fixed and paid to the
petitioner by order dated 16.2.1992. The
petitioner has challenged the same before this
Court by way of Writ Petition No. 5530 of
1996 dismissed by order dated 20.5.2003.
The said order was challenged by filing
Special Appeal No. 656 of 2003, Sri Ram
Manohar Kapoor Vs. State of U.P. and
others and on 4.4.2007, disposed of with the
following directions:-

"We, therefore, modify the judgement
of the learned Single Judge and dispose of
the appeal without expressing any opinion on
merit, with the direction to the respondent
no.4, Financial Controller, who is expert in
finance matters to re-examine the matter and
pass a detail reasoned order with regard to
the rate of payment of additional dearness
allowance and also whether the order dated
6.2.1992 fixing the petitioner -appellant's
pay-scale was rightly passed or not. Because
of the fact that the appellant has retired from
service long back, it is further directed that
the aforesaid decision shall be taken by
respondent no.4 expeditiously preferably
within a period of six weeks from the date of
production of a certified copy of this order
after affording opportunity of hearing to the
appellant to explain the factual aspects. The
order of the Executive Engineer dated
15.12.1995 will be subject to the subsequent
order passed by the respondent no.4."

7. In pursuance to the same , the
respondent no.3 Finance Controller, Public
Works Department (Pension Cell) Lucknow
has passed the impugned order 8.10.2007.

8. Sri Y.K.Saxena , learned counsel for
the petitioner submits that impugned order
dated 8.10.2007 is in violation of order dated
4.4.2007 passed by this Court in Special
Appeal no.656 of 2003 where it has been
held that there is no material to demonstrate
that the order dated 6.2.1992 of the
Executive Engineer fixing the salary of the
petitioner- appellant was passed either on
account of any fraud or misrepresentation
attributable to the appellant or through
connivance of lower staff so the same is
without jurisdiction.

9. Learned counsel for the petitioner
further submits that the impugned order is
also in contravention to the Government
Order dated 20.11.1979 by which the
additional dearness allowances was fixed at
the rate of 219/- with effect from 1.8.1979,
hence the action on the part of the
respondents thereby recovering the amount
of Rs. 30,000/- paid to him as excess amount
towards additional dearness allowance after
retirement of the petitioner, is an action
arbitrary , illegal and against the principles of
natural justice. In support of his contention ,
learned counsel for the petitioner has placed
reliance in the case of Sahib Ram Vs. State
of Haryana and others , 1995 Supp (1)
SCC18 and Ram Murti Singh Vs. State of
U.P. and others 2006 (4) ESC 2379 (All)
(DB).

10. Learned Standing Counsel submits
that in pursuance to the order passed in
Special Appeal, after hearing the petitioner
and going through the record , the Finance
Controller has passed the order dated
8.10.2007 holding therein that the petitioner
is not entitled for additional dearness
allowance at the rate of Rs.219/- with effect
from 1.8.1979 as in view of the Government
order dated 12.8.1983 the petitioner is
entitled for additional dearness allowance
amounting to Rs. 208.10 paisa hence the
present writ petition filed by the petitioner is
misconceived and liable to be dismissed.
2 All] Sri Ram Manohar Kapoor V. State of U.P. and others
915

11. I have heard the learned counsel for
the petitioner and gone through the record.

12. In the present case , the petitioner
retired
employee
of
Public
Works
Department had initially been granted
additional dearness allowance in view of the
Government Order dated 20.11.1979 of Rs.
219/- (122+97.20 paisa) with effect from
1.8.1979 by means of order dated 6.2.1992.
However thereafter the same was reduced by
order dated 16.12.1995 to Rs. 208.10 paisa(
122+86.10 paisa). In view of the said fact a
sum of Rs. 30,000/- was deducted from the
post retiral benefits.

13. Thus , the core question which is to
be decided in the present case is whether by
means of order dated 6.2.1992, in pursuance
to the Government Order dated 20.11.1979 ,
petitioner was rightly granted additional
dearness allowance of Rs. 219/- with effect
from 1.8.1979 or not?

14. An average employee is considered
to have no saving capacity except through
forced savings, such as , contribution to
provident Fund or premium towards Life
Insurance etc. He is expected to consume his
pay packet in meeting the daily needs for
him and his family. If by mistake the
employer makes over payments and such
mistake is not induced by any representation
from the employee and the employee has
received higher scale due to default it is only
to just and proper not to recover and excess
amount already paid to him .

15. In Shaib Ram Vs. State of
Haryana, 1995 Supp (1) SCC 18 there was
a mistake in the fixation of pay-scale of the
appellant. He received his pay on higher payscale than due resulting in over payment,
which the State Subsequently sought to
recover , the Hon'ble Supreme Court
observed:

"....it is not on account of any
misrepresentation made by the appellant that
the benefit of higher pay scale was given to
him but wrong construction made by the
Principal for which the appellant cannot be
held to be at fault. Under the circumstances
the amount paid till date may not be
recovered from the appellant."

16. In Nand Kishore Sharma Vs.
State of Bihar 1995 Supp (3) SCC 722 the
employees of Agriculture Department were
granted
revised
pay-scale
on
the
recommendation of Anomaly Committee
consent to which was given by the Finance
Department . The employees were given
benefits of revised pay with arrears of pay.
However, the State Government never
officially accepted the revised pay-scale and
sought to recover the difference of salary
from the employees was interfered by the
Supreme Court stating that payment having
been made as a result of Anomaly
Committee's
recommendation
and
concurrence of the Finance Department, the
State could not have reversed the same, more
so, without affording prior opportunity to the
employees the recovery was impermissible.
However, the withdrawal of the revised pay
scale was allowed.

17. In the case of State of Jammu and
Kashmir V. Pirzada Gulam Nabi , 1998
SCC (L&S) 462 it is held by the Apex Court
that when salary was already paid under any
misapprehension and by the time correct
position emerged the employee already
retired from service, the Courts may be
reluctant to order recovery from such retired
employee, as recovery would put a retired
employee to hardship.
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

18. In Union of India Vs. Ram Gopal
Agarwal (1998) 2 SCC 589 noticing that
recovery order caused hardship , the
Supreme Court held that such recovery
cannot be effected. The same view was taken
in Bihar State Electricity Board V. Bijay
Bahadur, 2000 SCC (L&S) 394.

19. In K. Vasudevan V Mohan N.
Mali, 2003 SCC (L&S) 90 payments were
effected on account of wrong promotion; the
Supreme Court held that promotion could be
annulled but no recovery was permissible.

20. In the case of Duryodhan Lal
Jatav V State of U.P. And others 2005 (2)
ESC 1067 (All) this Court has held that if
additional payment has been made to the
employees for no fault of their, they should
not be penalized for this.

21. In the case of Ram Murti Singh
Vs. State of U.P. and others , 2006 (4) ESC
2379 (All) (DB) this Court has held that
"Having given our anxious consideration to
the various pleas raised by the learned
counsel for the parties , we find that now it is
well settled by the decision of the Apex Court
that if employees have received higher scale
due to no fault of theirs, it would only be just
and proper not to recover any excess amount
already paid to them".

22. In view of the above stated
proposition of law in the instant case the
order dated 8.10.2007 passed by opposite
party no.3 is not sustainable and arbitrary in
nature.

23. Further this Court while deciding
the Special Appeal filed by the petitioner (
Special Appeal No. 656 of 2003, Sri Ram
Manohar Kapoor Vs. State of U.P. And
others ) by order dated 4.4.2007 has held as
under:-

"we have considered the submissions .
From a perusal of averments made in the
counter affidavit, we do not find any material
to demonstrate that the order dated 6.2.1992
of the Executive Engineer fixing the salary of
the petitioner-appellant was passed either on
account of any fraud or misrepresentation
attributable to the appellant or through
connivance of lower staff and thus the
finding recorded by the learned Single Judge
cannot be sustained."

24. Moreover from the perusal of the
orders under challenge in the present case it
is crystal clear that respondent no.3 while
passing the impugned order dated 8.10.2007
has not given any findings that whether there
was any fault or fraud played on the part of
the petitioner by virtue of which the
additional dearness allowances was granted
to him at the rate of Rs. 219/- with effect
from 1.8.1979 by means of order dated
6.2.1992, so the same is in contravention to
the order dated 4.4.2007 passed in Special
Appeal no. 656 of 2003 as well as against the
principles of natural justice.

25. For the foregoing reasons , the writ
petition is allowed. The order dated
8.10.2007 passed by opposite party no.3 is
set aside.

26. No order as to costs.
---------