# State of U.P. & Ors v. Suresh Chandra

- **Citation:** (2023) 11 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-03
- **Case number:** Special Appeal No. 717 of 2023
- **Bench:** Salil Kumar Rai, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-suresh-chandra-49370
- **Pages:** 8

## Headnote

Order dated 29.7.2010 -aforesaid amount was
deducted from his gratuity - excess payment
was not done due to any misrepresentation or
fraud committed on the part of the respondent
petitioner- recovery done after more than 08
years on the date of his retirement- his case is
covered under Clause(ii) of para-18 of Rafiq
Masih (Whitewasher) case -Section 13 of the
Act, 1972 prohibits attachment of any gratuity
payable under the Act in execution of any
decree or order of any Civil, Revenue & Criminal
Court-no infirmity in the impugned order.

Appeal dismissed. (E-9)

Cases cited:

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeals with a direction to the authorities
concerned to take a decision to fill-up all
the posts inclusive of residual 6,470 by
preparing a common merit list of all the
eligible Assistant Teachers as per NCTE
Notifications
read
with
Notification/Circular dated 26.12.2016 in
the respective districts as discussed here-inabove, within a period of three months
from the date of production of a certified
copy of this order. Subject to the
preparation of merit list as directed, the
interim order dated 17.11.2018 & extended
vide order dated 22.07.2019 shall remain in
operation
for
three
months
or
till
preparation of said merit list, whichever is
earlier.
----------
(2023) 11 ILRA 508
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Special Appeal No. 717 of 2023

State of U.P. & Ors. ...Appellants
Versus
Suresh Chandra. ...Respondent

Counsel for the Appellants:
C.S.C., C.S.C.

Counsel for the Respondents:
Sri Lal Babu Lal

Recovery of arrears -of 6th Pay Commission -
respondent was paid arrears of 6th Pay
Commission in pursuance of the Government
Order dated 29.7.2010 -aforesaid amount was
deducted from his gratuity - excess payment
was not done due to any misrepresentation or
fraud committed on the part of the respondent
petitioner- recovery done after more than 08
years on the date of his retirement- his case is
covered under Clause(ii) of para-18 of Rafiq
Masih (Whitewasher) case -Section 13 of the
Act, 1972 prohibits attachment of any gratuity
payable under the Act in execution of any
decree or order of any Civil, Revenue & Criminal
Court-no infirmity in the impugned order.

Appeal dismissed. (E-9)

Cases cited:

1. High Court of Punjab & Haryana Vs Jagdev
Singh, MANU/SC/0831/2016

2. Shyam Babu Verma Vs U.O.I. reported in
(1994) 2SCC 521

3. Punjab & ors.Vs Rafiq Masih (Whitewasher) &
ors., 2015 (4) SCC 334

4.
Thomas
Daniel
Vs
St.
of
Kerala,
MANU/SC/0569/22

5. Calcutta Dock Labour Board & anr.Vs Smt.
Shandhya Mitra & ors.(1985) 1985 SCR (2) 826

(Delivered by Hon'ble Surendra Singh-I,
J.)

1. This special appeal has been
instituted against the order dated 26.4.2023
passed by learned Single Judge in WritA No. 33297 of 2013 ( Suresh Chandra
Asthana, S/O, S. N. Lal Asthana Vs.
State Of U.P. And 3 Others). Vide
impugned order, the learned Single
Judge has directed the appellant no.2,
Commissioner, Rural Development to
refund
the
amount
deducted
from
gratuity
dues
to
the
respondentpetitioners.

2. The writ petition was filed by the
respondent-petitioner for quashing the
order dated 31.10.019 passed by the
respondent no.2 Project Director, District
Rural Development Authority, Chandauli
(hereinafter referred as 'DRDA'). By the
aforesaid order, Project Director passed an
11 All. State of U.P. & Ors. Vs. Suresh Chandra.
509
order for recovery of excess arrears of
salary paid to the respondent-petitioner.

3. The writ petition was filed by the
petitioner Surendra Chandra Asthana with
the following prayer :-

"I. Issue a writ, order or direction in
the nature of certiorari quashing the order
dated 15.11.2011 passed by Commissioner
Rural
Development
U.P.
Lucknow
respondent no. 2 and its consequential
order dated 30.05.2013 Annexure no. 3 to
this writ petition to the extent it relates to
the recovery of amount of arrears paid to
the
petitioner
in
terms
of
the
recommendation
of
the
VI
pay
Commission.

ii. issue a writ, order or direction in the
nature of certiorari calling for the records
and quashing the impugned orders dated
15.11.2011, 19.06.2013 (so far as it relates
to petitioner) and 31.10.2019 passed by the
respondent nos. 2 and 3 respectively
(Annexure Nos. 4,5 and 6 to the writ
petition)"

4. The averments made by the
petitioner-respondents in the affidavit filed in
support of the writ petition that the petitioner
was posted in the Pay-scale of Rs. 800013500 (pre revised) as Assistant Engineer
DRDA Chandauli in terms of the order dated
7.4.2000 issued by the Government of U.P.
Rural Development, Lucknow (Annexure
no.1). The petitioner by virtue of his services
rendered to the Government was granted
revised
pay-scale
in
terms
of
the
recommendation of 6th Pay Commission.
The amount of aforesaid arrears of pay was
paid to the petitioner in terms of the relevant
rules admissible for implementation of
recommendation of 6th Pay Commission. No
misrepresentation or fraud was played by the
petitioner to get the arrears of amount of 6th
Pay Commission.

5. It has been averred that the
Commissioner Rural Development, U.P. sent
a proposal for grant of Rs. 44,56,620/- to the
State Government vide its letter dated
13.11.2011 for payment of arrears of salary to
the
employees
of
DRDA
on
the
implementation of the recommendation of
6th Pay Commission. On rejection of this
proposal granted by the Government, a
direction was issued by the Commissioner,
Rural Development to the Project Director,
District Rural Development Agencies to
make recovery of arrears which has already
been
paid
to
the
employees.
The
Commissioner
Rural
Development,
Government of U.P. has issued a letter dated
15.11.2011 to all the Chief Development
Officer/Executive Director, Project Director,
District Development Agencies , U.P. to
make recovery of the arrears paid to the
employees on the recommendation of 6th
Pay Commission. The above order passed
by the Commissioner Rural Development
dated 15.11.2011 was stayed by this Court
vide orders dated 16.3.2012, 27.2.2012,
28.5.2012 and 27.3.2012 passed in Service
Single No. 1339 of 2012 (Akhilesh
Chandra & 2 Ors. Vs. State of U.P.
Through Prin. Secy. Rural Development
Lko.& Ors.), Service Single No. 1064 of
2012 (Raghupal Singh & 3 Ors. Vs. State
of U.P. Through Prin. Secy. Rural
Development Lko.& Ors.), Service Single
1109 of 2012 (Virendra Kumar Verma &
22 Ors Vs. State of U.P. Through Prin.
Secy. Rural Development) and Writ- A No.
15064 of 2012 (D.D. Gupta & Ors Vs.
State
of
U.P.
&
Ors.)
respectively
(Annexure No. 2 to the writ petition).

6. The Authorities of DRDA did not
recover the amount of arrears paid to their
employees in view of the order passed by
this Court in the aforesaid writ petitions.
Notwithstanding the aforesaid stay orders
510 INDIAN LAW REPORTS ALLAHABAD SERIES
of this Court, the Commissioner,Rural
Development
U.P.
sent
letter
dated
30.5.2013 to the Project Director DRDA ,
Chandauli to recover the amount from the
petitioner (annexure no.3), in pursuance of
the orders dated 15.11.2011 & 30.5.2013 of
the Commissioner Rural Development, the
Project Director Chandauli has issued
impugned notice dated 19.6.2013 after
more than five years (annexure no.5)
whereby the amount of Rs. 2,86,851/- has
been directed to be recovered from the
petitioner.

7. It has also been averred by the
petitioner that the impugned order dated
15.11.2011, 30.5.2013 and recovery notice
dated 19.6.2013 has been passed by the
respondent in violation of principle of
natural justice as much as no notice and
opportunity of hearing has been given to
him before the passing the same. By office
order dated 31.10.2019 passed by the
Project Director, DRDA, Chandauli alleged
excess
amount
of
Rs.
2,86,851/-
determined by the impugned order dated
19.6.2013 has been recovered from the
gratuity amount of Rs 10,00,000/- payable
to the petitioner. The petitioner functioning
as Assistant Engineer in DRDA, Chandauli
has retired on 31.10.2019 on attaining the
age of superannuation . It has also been
submitted that there is no provision under
which the amount of gratuity payable under
the Payment of Gratuity Act 1972 could be
deducted against the alleged excess amount
paid to him . In absence of any such
provision, it is incumbent upon the
respondents to pay full amount of gratuity
payable to the petitioner.

8. In the Counter affidavit filed in
Writ-A No. 33297 of 2013 ( Suresh
Chandra Asthana, S/O, S. N. Lal Asthana
Vs. State Of U.P. And 3 Others), averments
have been made that in compliance of
Government Order dated 8th December
2008 payment of arrears of salary as per the
recommendation of 6th Pay Commission
has been disbursed to the employees of
DRDA.

9. It has also been stated that as per
the Government order dated 8th December,
2008 the payment of arrears of salary to the
employees working in DRDA, Chandauli
has been done on 9.1.2009. It has also been
stated that since the Government order
dated 29.7.2010, Government had decided
to make payment of arrears to the
employees of DRDA from 29.7.2010
whereas the petitioner was paid arrears of
salary from 1.1.2006 to 29.7.2010 which
was without any Government Order, hence
the excess salary amount has rightly been
recovered from the petitioner.

10. The learned Single of this Court
vide order dated 26.4.2023 quashed the
order dated dated 31.10.2019 passed by the
Project Director, DRDA Chandauli for
recovery of excess payment of arrears of
6th Pay Commission on the grounds
mentioned in paragraph no.5 of the
judgment which is follows as under:-

"5. By bare perusal of the above
judgments, it is crystal clear that no
recovery of excess payment can be fastened
against the retired Government employee
especially in case of class 3 and class 4 and
ratio of judgment says that if excess amount
was
not
paid
on
account
of
any
misrepresentation or fraud of employee or
if such excess payment was made by
employer by applying a wrong principle for
calculating pay/allowances or on the basis
of a particular interpretation of rule/order
which
is
subsequently
found
to
be
erroneous,
such
excess
payment
of
11 All. State of U.P. & Ors. Vs. Suresh Chandra.
511
emoluments
or
allowances
are
not
recoverable and as such the relief against
recovery is granted not because of any
right of the employees but in equity,
exercising judicial discretion to provide
relief to the employees from hardship that
will be caused if recovery is ordered. The
Apex Court has further held that if in a
given case, it is proved that employee had
knowledge that payment received was in
excess of what was due or wrongly paid or
in cases where error is detected or
corrected within a short time of wrong
payment, the matter being in realm of
judicial discretion, Court may on facts and
circumstances of any particular case order
for recovery of amount paid in excess. And
as such it has been held that no
administrative authority is empowered to
fasten the recovery against any retired
employee without holding due process of
law."

11. The learned Single Judge has
relied upon the judgment of Ho'ble Apex
Court in State of Punjab and others Vs.
Rafiq Masih (Whitewasher) and others
2015 (4) SCC 334 .

12. It has been argued by learned
Standing Counsel for the State that
although the State Government vide G.O.
dated 8.12.2008 had directed the payment
of the arrears of 6th Pay Commission to the
employees of State Government vide letter
dated 29.7.2010 the Commissioner, Rural
Development U.P. directed the payment of
arrears of 6th Pay Commission to the
employees of DRDA. It was made clear
vide
order
dated
15.11.2011
of
Commissioner, Rural Development, U.P.
that employees of DRDA are not entitled to
get arrears of 6th Pay Commission
therefore, the order dated 30.5.2013 passed
by the Commissioner Rural Development,
U.P. Lucknow directed the recovery of
amount of arrears wrongly paid to the
employees of DRDA thus, as per the
Government order, the aforesaid amount
has rightly been recovered from the
gratuity amount of respondent-petitioner. It
has been further argued that recovery
against the respondent-petitioner has been
initiated during his service period i.e. in the
year 2013 whereas he retired on 31.10.2019
. Lastly, it has been argued that in its
judgment dated 29.7.2016 passed in Civil
Appeal No. 3500 of 2016 decided in
29.7.2016 by the Hon'ble Apex Court in
the case of High Court of Punjab &
Haryana & Ors. Vs. Jagdev Singh, the
Hon'ble Apex Court has held that in case
an undertaking has been given by the
employee to the effect that if amount paid
is found excess in future it may be
recovered
from
him
even
after his
retirement therefore, recovery has rightly
been made from the respondent-petitioner.

13. Per contra learned counsel for the
respondent-petitioner has argued that the
arrears of 6th Pay Commission was paid to
the respondent petitioner without any
misrepresentation or fraud practised by
him. Therefore, it cannot be recovered from
him. It has also been argued that no
undertaking was executed nor any such
affidavit has been given by the respondentpetitioner that the excess amount may be
recovered if the payment is found excess in
future. The payment was made entirely at
the behest by the appellants in which
respondent-petitioner had no role at all. It
has also been submitted that the recovery of
arrears of 6th Pay Commission was made
on
31.10.2019,
on
the
date
of
superannuation of respondent-petitioner on
31.10.2019. The Project Director, DRDA
Chandauli
deducted
the
amount
of
aforesaid arrears from the gratuity amount
512 INDIAN LAW REPORTS ALLAHABAD SERIES
payable to the respondent-petitioner, which
is not permissible under the law. It is also
been submitted that the aforesaid recovery
was made after more than five years of it's
payment on the date of his retirement
against the judgment of Hon'ble Surpeme
Court in Rafiq Masih(whitewasher) case
(supra). It has also been argued that as
respondent -petitioner does not receive any
pension. Therefore, the recovery of the
arrears of 6th Pay Commission, which was
repaid to him after the judgment and order
dated
26.4.2023
passed
in
Writ
A
No.33297/2013
will
be
against
the
equitable consideration.

14. We have heard the rival
submissions advanced by learned counsel
for the parties and perused the material on
record.

15. There is no statutory law
regarding recovery of excess payment
made by the employer to the employee.
The recovery of excess payment is based
on equitable consideration, which has been
settled by the Judgment of Hon'ble Apex
Court In Sayed Abdul Qadir Vs. State of
Bihar reported in (2009) 3 SCC 475. In
this case, the Hon'ble Apex Court quashed
the order directing the recovery of excess
payment made to the teachers for their no
fault after ten years. The Hon'ble Apex
Court observed as under:

"58. The relief against recovery is
granted by 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. But, 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, the matter being in the realm of
judicial discretion, courts may, on the
facts and circumstances of any particular
case, order for recovery of the amount
paid in excess.......

"59. Undoubtedly, the excess amount
that has been paid to the appellant
teachers
was
not
because
of
any
misrepresentation or fraud on their part
and the appellants also had no knowledge
that the amount that was being paid to
them was more than what they were
entitled to. It would not be out of place to
mention
here
that
the
Finance
Department had, in its counter-affidavit,
admitted that it was a bona fide mistake
on their part. The excess payment made
was the result of wrong interpretation of
the rule that was applicable to them, for
which the appellants cannot be held
responsible.
.....................................Keeping
in
view the peculiar facts and circumstances
of the case at hand and to avoid any
hardship to the appellant teachers, we are
of the view that no recovery of the amount
that has been paid in excess to the
appellant teachers should be made."

16. In case of Shyam Babu Verma
Vs. Union of India reported in (1994)
2SCC 521, the Hon'ble Apex Court
observed as under:-

"11. Although we have held that the
petitioners were entitled only to the pay
scale of Rs 330-480 in terms of the
recommendations
of
the
Third
Pay
Commission w.e.f. 1-1-1973 and only after
the period of 10 years, they became entitled
to the pay scale of Rs 330-560 but as they
have received the scale of Rs 330-560
since 1973 due to no fault of theirs and
that scale is being reduced in the year
11 All. State of U.P. & Ors. Vs. Suresh Chandra.
513
1984 with effect from 1-1-1973, it shall
only be just and proper not to recover any
excess amount which has already been
paid to them. Accordingly, we direct that
no steps should be taken to recover or to
adjust any excess amount paid to the
petitioners due to the fault of the
respondents, the petitioners being in no
way responsible for the same."

(emphasis supplied)

17.

After
considering
several
judgments of the Hon'ble Apex Court in
Punjab and others Vs. Rafiq Masih
(Whitewasher) and others, 2015 (4) SCC
334 as ready reference, the Hon'ble Apex
Court has summarized the following few
situations , wherein recoveries by the
employer would be impermissible in law:-

(i)
Recovery
from
employees
belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D'
service).

(ii) Recovery from retired employees,
or the employees who are due to retire
within one year, of the order of recovery.

(iii) Recovery from employees, when
the excess payment has been made for a
period in excess of five years, before the
order of recovery is issued.

(iv) Recovery in cases where an
employee has wrongfully been required to
discharge duties of a higher post, and has
been paid accordingly, even though he
should have rightfully been required to
work against an inferior post.

(v) In any other case, where the
Court arrives at the conclusion, that
recovery if made from the employee,
would be iniquitous or harsh or arbitrary
to such an extent, as would far outweigh
the equitable balance of the employer's
right to recover.

18. In High Court of Punjab &
Haryana
Vs.
Jagdev
Singh,
MANU/SC/0831/2016, while opting for
the revised pay-scale, the respondent had
given an undertaking to refund any excess
payment if it was so detected and
demanded subsequently. The revised payscale in the selection grade was allowed to
the respondent on 7.1.2000 and eventually,
he was compulsorily retired from service
on 12.2.2003 . On 18.2.2004, a letter for
recovery of an amount as Rs. 1,22,003/-
was served upon the respondents pursuant
to the direction of the Registrar of the High
Court. The Hon'ble Apex Court held that
since in the present case an undertaking
was
specifically
furnished
by
the
respondent officer at the time of his
accepting revised pay-scale, to the effect
that any payment found to have been made
in excess would be liable to be adjusted,
while putting for the benefit of the revised
pay-scale, respondent was clearly on notice
of the fact that in future any payment found
excess shall be refunded and adjusted the
petitioner was entitled to refund/adjust the
excess payment made. The principle
enunciated in Jagdev Singh case (supra)
cannot apply in the present case, in that
case the officer to whom payment was
made in the first instance was clearly
placed on notice that any payment found to
have been made in excess would require to
be refunded. The Officer furnished an
undertaking while opting for the
revised pay-scale. He was bound by
the undertaking. The respondent was
directed to refund the excess amount
in monthly instalments spread over a
period of two years. In the present
present case no such undertaking
was furnished by the respondentpetitioner regarding the money paid
to him.
514 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In Thomas Daniel Vs. State of
Kerala, MANU/SC/0569/22 where the
excess amount was not paid to the
employee
on
the
account
of
any
misrepresentation or fraud of the employee
but due to mistake in interpreting Kerala
Service Rules, which was attempted to be
recovered after passage of 10 years of the
retirement of the employee, the Hon'ble
Apex Court held that the said recovery
cannot be made as it will be iniquitous and
arbitrary.

20. The facts of the present case is
that the respondent-petitioner was working
on the post of Assistant Engineer in
DRDA, Chandauli in the pay-scale of
8000-13500 (pre revised) from 4.7.2000, he
was paid arrears of 6th Pay Commission in
compliance of the order dated 29.7.2010.
Vide notice dated 19.6.2013 issued by the
Project
Director,
DRDA,
Chandauli
directed
the
respondent-petitioner
to
deposit of Rs. 2,86,851/- as irregular
payment of arrears of 6th Pay Commission
received by him. This notice was in
pursuance of the letter dated 15.11.2011
&* 14.6.2013 issued by the Commissioner
Rural Development, U.P. to the Project
Director DRDA, Chandauli. The aforesaid
arrears of 6th Pay Commission was not
recovered from the respondent-petitioner
while he was in service. The aforesaid
amount of arrears of 6th Pay Commission
was deducted from his gratuity amount of
Rs. 10,00,000/-, payable to the respondentpetitioner on the date of his retirement i.e.
on 31.10.2019.

21. From the aforesaid discussion, it
is clear that respondent was paid Rs.
2,86,851/-
as
arrears
of
6th
Pay
Commission
in
pursuance
of
the
Government Order dated 29.7.2010 and the
aforesaid amount was deducted from his
gratuity in compliance of the letter dated
15.11.2011 and 14.6.2013 issued by the
Commissioner Rural Development, U.P.
and notice dated 19.6.2013 issued by
Project Director, DRDA Chandauli, the
excess payment was not done due to any
misrepresentation or fraud committed on
the part of the respondent petitioner. The
recovery of the aforesaid amount of arrears
of 6th Pay Commission was done after
more than 08 years on 31.10.2019 on the
date of his retirement. Since the aforesaid
recovery of arrears of 6th Pay Commission
was done on the date of retirement of the
respondent-petitioner and his case is
covered
under
Clause(ii)
of
para-18
stipulated by the Hon'ble Apex Court in
Rafiq Masih (Whitewasher) case (supra),
recovery of such amount is illegal.

22. Apart from the above mentioned
judgments of the Hon'ble Apex Court
Section 13 of the Payment of Gratuity
Act, 1972 prohibits attachment of any
gratuity payable under aforesaid Act in
execution of any decree or order of any
Civil, Revenue & Criminal Court. Section
13 of the Payment of Gratuity Act, 1972 is
as follows:

"13. Protection of gratuity.-No
gratuity payable under this Act [and no
gratuity payable to an employee employed
in any establishment, factory, mine,
oilfield, plantation, port, railway company
or shop exempted under section 5] shall be
liable to attachment in execution of any
decree or order of any civil, revenue or
criminal court."

23. In Calcutta Dock Labour Board
& Anr. Vs. Smt. Shandhya Mitra & Ors.
(1985) 1985 SCR (2) 826, the Hon'ble
Apex Court held that Section 13 of the
Payment of Gratuity Act gives total
11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
515
immunity to gratuity from attachment.
Thus, the deduction of the amount of arrears
of 6th Pay Commission of Rs. 2,86,851/- from
gratuity money payable to him is illegal and
was rightly directed to be refunded to the
respondent-petitioner vide impugned order
dated 26.4.2023 passed by the learned Single
Judge in Writ-A No. 33297 of 2013.

24. The amount of Rs. 2,86, 851/- which
was deducted from the gratuity amount of the
respondents on 31.10.2019 has been refunded
to the respondent-petitioner in compliance of
the order dated 24.6.2023 passed by the learned
Single Judge in Writ-A No. 33297 of 2013
(Suresh Chandra Asthana, S/O, S. N. Lal
Asthana Vs. State Of U.P. And 3 Others).

25. In the facts and circumstances of the
case, the recovery of payment of arrears of 6th
Pay Commission would be iniquitous and
arbitrary and cannot be permitted.

26. It is our considered opinion that there
is no illegality or infirmity in the impugned
judgment and order dated 24.6.2023 passed by
learned Single Judge of this Court, there is no
merit in the special appeal and is liable to be
dismissed.

27. The appeal is dismissed accordingly.
----------
(2023) 11 ILRA 515
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2986 of 2010
connected with

Writ A Nos. 2001249 of 2014, 10278 of 2016 &
1517 of 2014
Ali Safdar Anhsari & Ors. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
G.C. Verma, Amol Kumar, Anupam Mehrotra,
Bhoopal Singh

Counsel for the Respondent:
C.S.C., Aakarsh Sood, Amit Bose, Ashok Shukla,
Manjive
Shukla,
Mohd.
Shujauddin
Waris,
Niranjan Singh, Prashant Singh Gaur, Prem
Chandra, Ramesh Pandey, Surya Mani Singh,
Upendra Nath Misra

Civil Law - U.P. Government Servants
Seniority Rules, 1991 - Rule 5 - U.P.
Secretariat Accounts Service Rules, 1993
- Rule 20 - Seniority - Direct Recruitment -
Merit List vs. Date of Joining - Certiorari -
Mandamus

The
petitioners,
appointed
as
Assistant
Accountants in 2000 from the main select list of
a 1995 recruitment, challenged the seniority list
dated 23.04.2010, which placed respondents
(wait-listed candidates appointed in 2001)
above
them,
seeking
its
quashing
and
restoration of the 29.12.2005 seniority list. The
petitioners argued that seniority should be
determined by the date of joining, as they
joined earlier, and that the appointments of
wait-listed candidates were illegal, violating
G.O.s and judicial precedents. The respondents
contended that Rule 5 of the Seniority Rules,
1991, mandates seniority based on the merit list
for a single selection, and both groups were part
of the same 1995 selection process. Held: (1)
The writ petitions were dismissed, upholding the
seniority list dated 23.04.2010. (2) Rule 5 of the
Seniority Rules, 1991, governs seniority for
direct recruitment from one selection, requiring
it to be based on the merit list prepared by the
Commission, not the date of joining. (3) Both
petitioners and respondents were selectees of
the same 1995 selection, making the combined
merit list dated 05.06.2003 binding, as it was
unchallenged. (4) The seniority list dated
29.12.2005, based on joining dates and Bhey
Ram Sharma Vs Haryana St. El. Bd., was
erroneous,
as
it
involved
two
separate
selections, unlike the single selection here. (5)
The Yogendra Kumar Pal Vs St. of U.P. case was