# Suraj Narain Bhatt v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-09
- **Case number:** Civil Misc. Writ Petition No. 13476 of 2006
- **Bench:** V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-narain-bhatt-v-state-of-u-p-and-others-41189
- **Pages:** 6

## Headnote

Sri C.P. Mishra
Sri S.K. Garg
S.C.

Civil
Services
Regulation-361Retirement benefits-petitioner initially
2 All] Suraj Narain Bhatt V. State of U.P. and others
389
appointed
as
Boring
Mechanic
29.12.1966
after
regularizationpromoted on the post of Junior Engineer
on 07.07.1983-worked till the date of
his retirement-pension fixed as Boring
Mechanic-and the claim for fixation as
Junior Engineer denied on the ground
that no regular promotion given-held
service during this period cannot be
ignored-entitled for fresh fixation as
Junior Engineer-last pay drawn salary
basic-consequential direction issued.

Held: Para 9

Having heard the learned counsel for the
parties at length and perused the entire
record including decision and relevant
Government Orders, I find that the
petitioner had been promoted on the
stop gap arrangement though he was
never formally promoted on the said post
of Junior Engineer (Minor Irrigation) on
regular basis but the work was being
taken from him as junior engineer and
salary was also being paid on the pay
scale of junior engineer with all benefits
of the increment in pay scale as such
available for the said post from time to
time
was
rightly
said
to
be
not
recoverable as per the impugned order
dated 13.09.2005. More so, as it is now
settled law that once salary has been
paid to an employee on higher pay scale
not because of any fraud or fault on the
part of the said employee the same
cannot be recovered from him. Thus, the
order of recovery/adjustment as per
order dated 19.03.2005 (Annexure No.
14 of the counter affidavit) passed by
the
Block
Development
Officer,
Hollagarh, Allahabad is not justifiable
and sustainable in the eyes of law. The
petitioner is also entitled to all retiral
benefits available to a permanent Junior
Engineer as he has served on the said
post as such and was being paid salary
for more than 10 years as required in
terms of clause 2 of the aforesaid
G.O./Office
Memorandum
dated
01.07.1989 for more than 20 years of
temporary service by way of stop gap
arrangement on the post of Junior
Engineer in terms of Clause 3. In the
present case, the petitioner fulfills all the
conditions
and,
therefore,
he
was
qualified for the pension, having been
retired as Junior Engineer on which post,
admittedly, he had been continuing to
work as such though on temporary or
officiating capacity in service, under the
orders
of
the
authority
concerned
without interruptions and, therefore, no
reason seems to take a different view, in
the case of the petitioner as the same
view has already been takenh by this
Court while disposing the writ petition
No. 3491 of 1988 (Abhimanyu Dev
Pandey Vs. State of U.P.) and writ
petition no. 1782 (s/s) 2004 (Shamim
Ahmad Siddique Vs. State of U.P.)
similarly placed boring technician who
promoted as Junior Engineer as the
petitioner was promoted and they had
been allowed pensionary benefits of the
post of Junior Engineer. In the present
case, there is no dispute th

## Text

388 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
agreement, the owner is put to loss
because his land has not been acquired
under
the
provisions
of
any
Act.
Therefore, this view taken by earlier
Division Benches of this Court referred to
above is quite reasonable that whenever
property of a citizen is taken by the State
without
following
the
procedure
prescribed by law, it is open for the owner
of the property to claim back possession
or compensation on the market value
along with solatium and interest.

13.

In
view
of
our
above
discussions, we allow the writ petition
and direct the Collector, Azamgarh to pay
compensation to the petitioners for their
land on which road has been constructed
within a period of four months from the
date, a certified copy of this order is
produced before him. While assessing the
compensation, the Collector will give
opportunity to the petitioners to produce
evidence and then decide the market value
of the land on the date of taking
possession. The petitioners will also be
given solatium on the market value at the
rate of 30% and interest @ 12 % per
annum from the date of taking possession
till
the
date
of
payment.
If
the
compensation is not paid within the said
period, the petitioners will be given back
possession of their land by dismantling
the road.

14. Before parting, we express our
deep
concern
regarding
practice
prevailing in these days by the State
authorities in taking property of the
citizens without following the procedure
prescribed by law, which is clear violation
of Article 300A of Constitution of India.
Such act of the officers of the State cannot
be justified in any way. Therefore, it is
necessary to give clear direction to the
officers and acquiring bodies.

15. Let a copy of this order be sent
to Chief Secretary, Government of U.P.
Lucknow for issuing clear direction to all
the Collectors or acquiring bodies of the
State that in future when they need any
property of citizens for public purpose,
they should acquire or requisition the
same
by
following
the
procedure
prescribed by law or with the mutual
consent of the parties in writing. If the
property is taken by the State beyond the
scope of Land Acquisition Act, the
compensation should be determined either
on mutual agreement or in the way
prescribed under the said Act. In case of
deviation, the public accountability of the
erring officers or officials should also be
fixed and departmental action be taken
against them. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2008

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No. 13476 of 2006

Suraj Narain Bhatt

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

Counsel for the Petitioner:
Sri D.K. Srivastava
Samiksha Bhatt

Counsel for the Respondents:
Sri C.P. Mishra
Sri S.K. Garg
S.C.

Civil
Services
Regulation-361Retirement benefits-petitioner initially
2 All] Suraj Narain Bhatt V. State of U.P. and others
389
appointed
as
Boring
Mechanic
29.12.1966
after
regularizationpromoted on the post of Junior Engineer
on 07.07.1983-worked till the date of
his retirement-pension fixed as Boring
Mechanic-and the claim for fixation as
Junior Engineer denied on the ground
that no regular promotion given-held
service during this period cannot be
ignored-entitled for fresh fixation as
Junior Engineer-last pay drawn salary
basic-consequential direction issued.

Held: Para 9

Having heard the learned counsel for the
parties at length and perused the entire
record including decision and relevant
Government Orders, I find that the
petitioner had been promoted on the
stop gap arrangement though he was
never formally promoted on the said post
of Junior Engineer (Minor Irrigation) on
regular basis but the work was being
taken from him as junior engineer and
salary was also being paid on the pay
scale of junior engineer with all benefits
of the increment in pay scale as such
available for the said post from time to
time
was
rightly
said
to
be
not
recoverable as per the impugned order
dated 13.09.2005. More so, as it is now
settled law that once salary has been
paid to an employee on higher pay scale
not because of any fraud or fault on the
part of the said employee the same
cannot be recovered from him. Thus, the
order of recovery/adjustment as per
order dated 19.03.2005 (Annexure No.
14 of the counter affidavit) passed by
the
Block
Development
Officer,
Hollagarh, Allahabad is not justifiable
and sustainable in the eyes of law. The
petitioner is also entitled to all retiral
benefits available to a permanent Junior
Engineer as he has served on the said
post as such and was being paid salary
for more than 10 years as required in
terms of clause 2 of the aforesaid
G.O./Office
Memorandum
dated
01.07.1989 for more than 20 years of
temporary service by way of stop gap
arrangement on the post of Junior
Engineer in terms of Clause 3. In the
present case, the petitioner fulfills all the
conditions
and,
therefore,
he
was
qualified for the pension, having been
retired as Junior Engineer on which post,
admittedly, he had been continuing to
work as such though on temporary or
officiating capacity in service, under the
orders
of
the
authority
concerned
without interruptions and, therefore, no
reason seems to take a different view, in
the case of the petitioner as the same
view has already been takenh by this
Court while disposing the writ petition
No. 3491 of 1988 (Abhimanyu Dev
Pandey Vs. State of U.P.) and writ
petition no. 1782 (s/s) 2004 (Shamim
Ahmad Siddique Vs. State of U.P.)
similarly placed boring technician who
promoted as Junior Engineer as the
petitioner was promoted and they had
been allowed pensionary benefits of the
post of Junior Engineer. In the present
case, there is no dispute that the
petitioner worked as Junior Engineer till
he attained the age of superannuation.
The petitioner was allowed higher pay
scale than that of the boring technician
right from the date of his promotion on
the post of Junior Engineer till the date
of his superannuation and the petitioner
had
been
discharging
duties
and
responsibility of the said post as such,
therefore, period of services of the
petitioner cannot be ignored by the
respondents while settling the pension
and payment of other retiral benefits
admissible to him.
Case law discussed:
(1999) 3 SCC 438, AIR 2000 SC 3513 (2)

(Delivered by Hon'ble V.C. Misra, J.)

1. Heard Sri D.K. Srivastava,
learned counsel for the petitioner, learned
standing counsel and perused the record
of the case. Counter and rejoinder
affidavit have been exchanged. On the
joint request of learned counsel for the
parties, this writ petition is being decided
390 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
finally at the admission stage itself in
terms of the Rules of the Court.

2. The facts of the case of the
petitioner in brief are that the petitioner
was appointed on 29.12.1966 to the post
of Boring Mechanic in the office of the
respondents, and this services were
regularized w.e.f. 01.04.1975. He was
promoted to the post of Junior Engineer
on 07.07.1983 and continued to discharge
his duties as such till he attained the age
of superannuation i.e. 31.07.2004. The
respondents did not release his post retiral
benefits, as pension, Gratuity, G.P.F. Etc,
therefore, he filed writ petition no. 5416
of 2004 before this Court which was
disposed off with the direction to the
respondents to decide the representation
of the petitioner expeditiously. Since his
representation was not decided by the
respondents in terms of the direction
issued by this court, the petitioner
invoked the jurisdiction of this court in
Contempt Petition No. 1048 of 2005 and
only when the respondents were directed
to appear in person before the court, the
respondents
passed
order
dated
10.05.2005 for payment of retiral benefits,
but they wrongly fixed vide impugned
order4 dated 13.09.2005 his salary @
Rs.6,375.00 per month for the purpose of
his pension against the post of Boring
Mechanic, though the petitioner had
worked for more than 23 years on the post
of Junior Engineer on the ground that the
petitioner had not been regularized on the
post of Junior Engineer and therefore he
was not entitled for promotional pay scale
of Class II.

3. Being aggrieved the petitioner has
filed the present writ petition for quashing
impugned order dated 13.09.2005 to the
extent whereby the petitioner was treated
as having retired from the post of Boring
Mechanic and he was not entitled to get
the benefit of promotional pay scale of
Class II. The relief sought in the writ
petition is i in the nature of mandamus
directing the respondents to fix the
pension of the petitioner against the post
Junior
Engineer
and
to
release
Rs.59,915.00 as gratuity amount available
to him and fix monthly pension proving
increment for the year 2001-2004 after
consequential relief.

4. In support of his case the
petitioner has enclosed the order dated
31.07.2004 (Annexure No. 3 to the writ
petition)
passed
by
the
Block
Development
Officer,
Hollagarh,
Allahabad, wherein he has been shown as
Junior
Engineer
in
the
irrigation
department. The impugned order at the
bottom has also a reference to the effect
that the petitioner had worked on the post
of
Junior
Engineer
in
stop-gap
arrangement and was also paid salary in
the pay scale of Junior Engineer. Learned
counsel for the petitioner contended that
vide
order
dated
05.12.2005,
the
respondents
illegally
an
arbitrarily
withheld the payment of Rs.59,915/-
towards gratuity. This was against the
provisions of C.C.R. Rules and in
contravention of Article 351 (A) and
Article 41 of the Constitution of India. In
para 14 of the writ petition it has been
stated that junior persons to the petitioner
including
other
similarly
situated
employees had been awarded promotional
pay
scale
of
Rs.8000-13500
w.e.f.
01.04.1997, whereas the said pay scale
was not provided to the petitioner
arbitrarily and illegally.

5. Learned counsel for the petitioner
has relied upon decisions of this court
2 All] Suraj Narain Bhatt V. State of U.P. and others
391
passed on 14.12.1999 in writ petition no.
3491 of 1988, Abhimanyu Dev Pandey
Vs. State of U.P. and others and on
18.10.20906 in Writ Petition No. 1783
(S/S) 2004, Shamim Ahmad Siddique Vs.
The State of U.P. And others, wherein the
incumbents were similarly situated person
who had been appointed as Boring
Mechanic and thereafter promoted to the
post of Junior Engineer on stop-gap
arrangement
and
had
worked
continuously several years till the date of
their retirements. The said writ petitions
have been allowed on the ground that they
had worked on the post of Junior
Engineer for substantial period, which
could not be ignored while settling the
pension and for payment of other retiral
benefits admissible to them. He has relied
upon a decision rendered in the case of
State of Dr. Uma Agrawal Vs. State of
U.P. and another (1999) 3 SCC 438),
wherein it has been held that pension is
not a bounty but right to retired employee.
Government is obliged to initiate process
for payment according to time scheduled
prescribed in the departmental rules. Nonobservance of the time schedule is one of
the factors which court may take not of.
He has also relied upon a decision of the
Hon'ble Apex Court rendered in the case
of Vijay L. Mehrotra Vs. State of U.P.
and others (AIR 2000 SC 3513 (2)
wherein it has been observed that the
State is liable to pay simple interest at the
rate of 18% per annum, if the retiral
benefits are wrongly withheld.

6. Learned counsel for the petitioner
submitted that Office Memorandum No.
Sa. 3-1152/Das-915/89, Lucknow: dated 1
July, 1989, was issued by the Government
of U.P. for providing retiral benefits to the
Government
employees
who
retired
without their services being regularized
and as to how their services were to be
regularized. The regulation 368 of Civil
Service Regulation is not available to the
Government Servant unless and until he is
not regularized on the said post. The
aforesaid Government Order was issued
for the removal of such difficulties, since
there was grievance of a lot of retired
employees who were working on ad hoc
basis in stop gap arrangement and
regularization of their services though had
been granted for consideration, but the
Government due to fulfillment of certain
technicality
in
the
process
of
regularization could not do so. The
incumbent retired on attaining the age of
superannuation and he was deprived of
his pensionary benefits. In Clause-2
itself, it has been mentioned that the State
Government has been pleased to provide
the benefit of pension, gratuity and family
pension etc to such Government servants
who though had not been regularized but
had completed their 10 years regular
service and had been retired on attaining
the age of superannuation and that they
would be treated at par with the
permanent employee on the said post. In
Clause-3, it has been provided that the
said condition shall also be applied in
case the incumbent has completed 20
years of temporary service. This order has
been made applicable and effective from
01.06.1989 vide the aforesaid Office
Memorandum.

7. The regulation 361 of the Civil
Service Regulations (hereinafter referred
to as the (CSR) service of an official does
not quality for pension wherein it has
been laid down that unless it conforms to
the following three conditions ie first, the
service must be under Government,
secondly
the
employment
must
be
392 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
substantive and permanent and thirdly, the
salary must be paid by Government.
Further Regulation 370 provides that
Continuous
temporary
or
officiating
service under the Government of Uttar
Pradesh followed without interruptions by
confirmation in the same or any other post
shall quality except:-

(i) periods of temporary or officiating
service
in
non-pensionable
establishment;
(ii) periods of service in work-charged
establishment; and
(iii) periods of service in a post paid form
contingencies
(The amendment takes effect from
April 20, 1977)

9. In the counter affidavit, the
respondents in support of the impugned
order has stated that services of the
petitioner had not been regularized by the
competent authority on the post of Junior
Engineer since he had been working on
the stop gap arrangement, as referred to
herein above as Junior Engineer in minor
irrigation department in terms of the order
dated 05.07.1983 till the date of his
retirement i.e. 31.07.2004 and, therefore,
he was not entitled to any pensionary
benefits on the sole ground of having
worked on the said post for the said
period, at par with regulation and since all
the retiral benefits have been released in
favour of the petitioner on the substantive
post of boring mechanic on which he was
posted and regularized in terms of the
departmental
rules
of
stop
gap
arrangement and had not been regularized
in
accordance
with
the
rules
and
regulations on the post of junior engineer
and that the petitioner had been wrongly
provided senior grade pay scale at
Rs.1640-2900.
Accordingly,
his
representation has been rightly rejected.
It is stated in para 13 of the counter
affidavit that the Senior Grade Rs.16402900 was wrongly and illegally provided
to the petitioner which was subsequently
cancelled by the prescribed authorityExecutive Engineer minor irrigation,
Allahabad vide order dated 05.06.1996
and
the
entire
excess
amount
of
Rs.59995/- so paid by way of salary was
order to be recovered/adjusted and,
therefore, the same was validly withheld.

Having heard the learned counsel for
the parties at length and perused the entire
record including decision and relevant
Government Orders, I find that the
petitioner had been promoted on the stop
gap arrangement though he was never
formally promoted on the said post of
Junior Engineer (Minor Irrigation) on
regular basis but the work was being
taken from him as junior engineer and
salary was also being paid on the pay
scale of junior engineer with all benefits
of the increment in pay scale as such
available for the said post from time to
time
was
rightly
said
to
be
not
recoverable as per the impugned order
dated 13.09.2005. More so, as it is now
settled law that once salary has been paid
to an employee on higher pay scale not
because of any fraud or fault on the part
of the said employee the same cannot be
recovered from him. Thus, the order of
recovery/adjustment as per order dated
19.03.2005 (Annexure No. 14 of the
counter affidavit) passed by the Block
Development
Officer,
Hollagarh,
Allahabad
is
not
justifiable
and
sustainable in the eyes of law. The
petitioner is also entitled to all retiral
benefits available to a permanent Junior
Engineer as he has served on the said post
as such and was being paid salary for
2 All] M/s Neeraj Dyeing, Khatrana and others V. Union of India and others
393
more than 10 years as required in terms of
clause 2 of the aforesaid G.O./Office
Memorandum dated 01.07.1989 for more
than 20 years of temporary service by
way of stop gap arrangement on the post
of Junior Engineer in terms of Clause 3.
In the present case, the petitioner fulfills
all the conditions and, therefore, he was
qualified for the pension, having been
retired as Junior Engineer on which post,
admittedly, he had been continuing to
work as such though on temporary or
officiating capacity in service, under the
orders of the authority concerned without
interruptions and, therefore, no reason
seems to take a different view, in the case
of the petitioner as the same view has
already been taken by this Court while
disposing the writ petition No. 3491 of
1988 (Abhimanyu Dev Pandey Vs. State
of U.P.) and writ petition no. 1782 (s/s)
2004 (Shamim Ahmad Siddique Vs. State
of
U.P.)
similarly
placed
boring
technician who promoted as Junior
Engineer as the petitioner was promoted
and they had been allowed pensionary
benefits of the post of Junior Engineer. In
the present case, there is no dispute that
the petitioner worked as Junior Engineer
till he attained the age of superannuation.
The petitioner was allowed higher pay
scale than that of the boring technician
right from the date of his promotion on
the post of Junior Engineer till the date of
his superannuation and the petitioner had
been discharging duties and responsibility
of the said post as such, therefore, period
of services of the petitioner cannot be
ignored by the respondents while settling
the pension and payment of other retiral
benefits admissible to him.

10. Accordingly, the impugned
order dated 13.09.2005 (Annexure No. 5
to the writ petition) passed by respondent
no. 4 is hereby quashed. The writ petition
is allowed. The respondents are directed
to calculate and settle the pension of the
petitioner and pay all post retiral benefit
to him taking into consideration that he
had worked on the post of Junior
Engineer w.e.f. 07.07.1983 till the date of
his retirement i.e. 31.07.2004 and shall
also
release
the
amount
so
recovered/adjusted vide dated 19.03.2005
(Annexure No. 14 to the counter affidavit)
passed
by
the
Block
Development
Officer, Hollagarh, Allahabad within a
period of three months from the date of
production of a certified copy of this
order before the authority concerned.
However, it is also provided that the
petitioner shall cooperate with the pension
sanctioning authority.
Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2008

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Misc. Application No. 11946 of
1986

M/s
Neeraj
Dyeing,
Khatrana,
Farukkhabad and others
...Applicants
Versus
Union of India and others ...Respondents

Counsel for the Applicants:
Sri V.K. Goel

Counsel for the Respondents:
Sri Bharat Ji Agrawal
Sri Shambhoo Chopra, S.C.
Sri Dhananjay Awasthi
A.G.A.

Code of Criminal Procedure-Section 482Quashing of Criminal proceeding-offence
under Section 277 of Income Tax Act-