# Union of India & Ors v. Arun Prakash Srivastava

- **Citation:** (2024) 9 ILRA 516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-26
- **Case number:** Writ A No. 6056 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-arun-prakash-srivastava-54671
- **Pages:** 6

## Headnote

A. Service Law - Modified Assured Career
Progression
Scheme
(MACPS)
-
Entitlement
-
Three
promotional
upgradation have already been granted -
Effect - Benefit of financial upgradation,
extended to the employee/respondents was
recovered - Exception to the Principle
regarding non-recovery of excess payment
from retired employee as laid down in Rafiq
Masih's case explained - The respondents
had notice of the fact that, if any, excess
payment is made, the same would be liable
to be recovered/refunded. Moreover, they
themselves submitted an application that
their pension be fixed after taking into
consideration the audit objections raised on
17.05.2016 & ors.orders that too, except in
one case, prior to their retirement - The
excess payment had already been recovered
prior to filing of the Original Applications.
The same has not be refunded as yet - High
Court quashed Tribunal' judgment passed
on
the
Original
Application
of
the
respondents/ employees. (Para 16 and 17)

Writ allowed. (E-1)

List of Cases cited:

## Text

516 INDIAN LAW REPORTS ALLAHABAD SERIES
the validity of the notification dated
21.11.2006 or the statutory rules providing
for equivalence particularly when neither
the same has been subject matter of
challenge nor any pleadings or arguments
have been advanced in that regard.
Moreover, it is also not the case of the
original applicant before the Tribunal or
before us that any fraud, concealment or
misrepresentation has been practised by the
writ petitioner as rather to the contrary on the
basis of the statutory rules and the qualification
as exhibited by the writ petitioner, she was
selected. Once the employers, the Postal
Department had taken a stand before the
Tribunal and is also maintaining it before us
that the qualification of Prathama is equivalent
to matriculation and invariably selections have
been conducted of the candidates who are
possessing the said qualification then it cannot
be said that the selection and appointment of the
writ petitioner was illegal.

21. There is another reason in subscribing
to the contention raised by the writ petitioner
that she is eligible and qualified particularly
when nothing has been brought on record
before us in the present proceedings that the
notification dated 21.11.2006 had been done
away with or there is any change in the
recruitment rules on the said subject whereby
the candidates who possessed Prathama from
Hindi Sahitya Sammelan have been rendered
ineligible.

22. Moreover the question of equivalence
is to be left to the employer and it would not be
a matter of judicial scrutiny by the Courts.
Hon'ble Supreme Court in the case of Zahoor
Ahmad Rather and others Vs. Sheikh
Imtiyaz Ahmad and others: 2019 (2) SCC
404 has observed as under:-

"The prescription of qualifications
for a post is a matter of recruitment policy. The
State as the employer is entitled to prescribe the
qualifications as a condition of eligibility. It is
no part of the role or function of judicial review
to expand upon the ambit of the prescribed
qualifications. Similarly, equivalence of a
qualification is not a matter which can be
determined in exercise of the power of judicial
review. Whether a particular qualification
should or should not be regarded as equivalent
is a matter for the State, as the recruiting
authority, to determine".

23. Accordingly, we are of the firm
opinion that the Tribunal has overlooked the
vital aspects which are germane to the
controversy in question and has erred in law in
setting aside the appointment of the writ
petitioner
while
allowing
the
original
application.

24. In view of the foregoing discussions,
the writ petition stands allowed. The order
dated 20.03.2024 passed by the Tribunal in
O.A. No. 1820 of 2010 is set aside.

25. Consequently, the original application
stands dismissed.

26. The natural and legal consequences
shall follow.
----------
(2024) 9 ILRA 516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2024
BEFORE
THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 6056 of 2024
With other connected cases

Union of India & Ors. ...Petitioners
Versus
Arun Prakash Srivastava ...Respondent

Counsel for the Petitioners:
9 All. Union of India & Ors. Vs. Arun Prakash Srivastava
517
Ashwani Kumar Singh

Counsel for the Respondents:
Savita Jain

A. Service Law - Modified Assured Career
Progression
Scheme
(MACPS)
-
Entitlement
-
Three
promotional
upgradation have already been granted -
Effect - Benefit of financial upgradation,
extended to the employee/respondents was
recovered - Exception to the Principle
regarding non-recovery of excess payment
from retired employee as laid down in Rafiq
Masih's case explained - The respondents
had notice of the fact that, if any, excess
payment is made, the same would be liable
to be recovered/refunded. Moreover, they
themselves submitted an application that
their pension be fixed after taking into
consideration the audit objections raised on
17.05.2016 & ors.orders that too, except in
one case, prior to their retirement - The
excess payment had already been recovered
prior to filing of the Original Applications.
The same has not be refunded as yet - High
Court quashed Tribunal' judgment passed
on
the
Original
Application
of
the
respondents/ employees. (Para 16 and 17)

Writ allowed. (E-1)

List of Cases cited:

1. High Court of Punj. and Har. & ors.Vs Jagdev
Singh; AIR 2016 SC 3523

2. St. of Punj. & ors. etc. Vs Rafiq Masih (White
Washer) etc; (2015) 4 SCC 334

3. Civil Appeal No(s). 1635 of 2013; Jagdish
Prasad Singh Vs St. of Bihar & ors. decided on
08.08.2024

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Om Prakash Shukla, J.)

(1) Heard Sri S.B. Pandey, learned
Senior Advocate and Deputy Solicitor
General of India assisted by Sri Ashwani
Kumar Singh, learned counsel for the
petitioners in all the petitions and Ms.
Savita Jain, learned counsel for the private
respondents.

(2) By means of this bunch of writ
petitions, similar orders of the same nature
passed in separate Original Applications
involving similar facts and case, have been
challenged. Writ-A No.6056 of 2024 has
been taken up as the leading writ petition
with the consent of the parties.

(3) The case of the petitioners herein
is that all the respondents in this petitions
had
been
granted
three
promotions/financial
upgradation,
therefore, in view of three promotions
already having been granted to them, they
were
not
entitled
to
any
financial
upgradation under the 'Assured Career
Progression Scheme (ACPS)' which came
into force w.e.f. 01.09.2008 as modified.
Nevertheless, they were wrongly granted
the benefit of 'Modified Assured Career
Progression
Scheme
(MACPS)
(3rd
financial upgradation)' w.e.f. 01.09.2008 in
the form of Grade Pay Rs.4800/-. They
were erroneously given the benefit of 3rd
financial upgradation w.e.f. 01.09.2008
vide orders dated 26.07.2010, 18.02.2010,
12.08.2010,
19.04.2010,
15.02.2012,
25.10.2013 and their names figure in the
list appended therein. One such order dated
26.07.2010 is annexed at page 26 to 28 of
the supplementary affidavit filed by the
petitioner in Writ-A No.6056 of 2024, the
leading petition.

(4) Our attention has been drawn to
point 2 of the said order dated 26.07.2010
which contains a specific condition to the
effect - "The pay fixation is subject to post
audit and in the light of audit observation,
over payment if any shall be recovered
518 INDIAN LAW REPORTS ALLAHABAD SERIES
from the official in one lump-sum." Similar
condition is there in other orders.

(5) The submission is that prior to
retirement of the respondents, the account
section scrutinized their service records and
raised an objection on detection of an
irregularity in grant of the aforesaid benefit
of 3rd financial upgradation as noticed
hereinabove and accordingly, a note was
put up to the DDO on 17.05.2016 (Writ-A
No.6056 of 2024) to the effect- "please
recover the over payment amount due to
wrong
fixation
from
01.09.2008
to
31.05.2016 in the grade pay of Rs.4800/-
and sent the recovery statement duly
attested by DDO along with pension
paper." This was prior to the retirement of
the respondents. Similar audit objections
were raised in case of all the respondents
albeit on different dates.

(6) It appears that the private
respondents were aware of this audit
objection which was referable to the
condition mentioned in the order dated
26.07.2010 etc., as such, the respondents
moved applications copies of which are on
record having been annexed with the
supplementary affidavit, asking the Deputy
Director General, Doordarshan Centre,
Lucknow to kindly finalize their pension
matter taking into consideration the audit
objection of the Accounts and Audit
Officer dated 17.05.2016 etc., in pursuance
to which, the pay fixation was corrected
and thereafter the pension was fixed.

(7) While disbursing the post retiral
dues, the excess payment was deducted
therefrom as was permissible in view of the
conditions mentioned in the orders dated
26.07.2010 and other orders which the
respondents readily accepted without any
demur and also in view of their own letter
given before their retirement for finalizing
their pension in terms of the audit
objections which in the context of Writ-A
No.6056
of
2024
was
served
on
17.05.2016. In Writ-A No.7231 of 2024,
respondent had given such letter after
retirement.

(8) In the light of the aforesaid facts,
reliance has been placed by the petitioners
upon a judgment of Hon'ble the Supreme
Court in the case of High Court of Punjab
and Haryana and Ors. vs. Jagdev Singh
reported in AIR 2016 SC 3523 wherein
Supreme Court of India considered its
earlier decision in State of Punjab and
others etc. vs. Rafiq Masih (White
Washer) etc : (2015) 4 SCC 334 and
opined that the principle enunciated at
point no. (ii) therein regarding nonrecovery of excess payment from retired
employees, or employees, who are due to
retirement within one year of the order of
recovery, being not applicable to a situation
such as in the case at hand where the
officer to whom the payment was made in
the first instance was clearly placed on
notice that any payment found to have been
made in excess would be required to be
refunded. It was further observed in the
said judgment that the officer furnished an
undertaking while opting for revised pay
scale is bound by undertaking, therefore,
according to learned counsel, an exception
was carved out to the application of the
earlier decision in Rafiq Masih (supra) in
the aforesaid manner.

(9) The submission is that in view of
the aforesaid, in the facts of this case,
neither the refixation of pay nor the
recovery
ensuing,
as
a
consequence
therefrom, was barred by law, in fact, the
Tribunal has not interfered with the
refixation but has interfered with the
9 All. Union of India & Ors. Vs. Arun Prakash Srivastava
519
recovery, ignoring the factual aspects as
narrated hereinabove, and ignoring the
documents referred above which were also
on record of the Tribunal and without
considering the subsequent decision of
Hon'ble the Supreme Court in Jagdev
Singh (supra) which was also brought on
record by it.

(10) On being confronted, Ms. Savita
Jain, counsel for the private respondents
submitted that, in the case at hand, no
undertaking has been given by the
respondents permitting such refixation or
recovery, however, she does not deny the
fact that before the Tribunal, the order of
refixation of salary or the audit objections
were not challenged instead a relief was
sought in the form of directions to the
respondents therein to pay the post retiral
dues, inter alia, albeit along with already
deducted amount from the gratuity of the
petitioners with the interest at market rate
i.e. the amount deducted on account of
excess payment.

(11) The contention of the counsel for
the respondents was that the Accounts
Officer was not entitled to refix the pay or
order recovery, however, learned counsel
did not deny the conditions mentioned in
the orders dated 26.07.2010 and other
orders as noticed hereinabove nor that the
respondents had given an application for
fixing their pension prior to retirement
taking
into
consideration
the
audit
objection dated 17.05.2016, except in WritA No.7231 of 2024. Moreover, the audit
objection was not challenged by the
respondent in the Original Application.

(12) She, however, laid great
emphasis on another judgment of the
Supreme Court of India rendered on
08.08.2024 in Civil Appeal No(s). 1635 of
2013 : Jagdish Prasad Singh vs. State of
Bihar and Others, wherein it has been
held in para 20 that an order directing
reduction in pay scale and recovery from
the appellant therein was manifestly not
preceded by any show cause notice and
was, thus, passed in gross violation of
principles of natural justice and also that no
departmental action could have been
initiated against the appellant therein after
eight years following his superannuation
because
the
employer
employee
relationship had come to an end after the
appellant's superannuation, to contend that
in the facts of the case the judgment of the
Tribunal is justified and this Court should
not interfere with the same.

(13) Having heard learned counsel for
the parties and having perused the records
and in view of the facts already noticed
hereinabove, what comes out is that all the
respondents
had
already
been
promoted/granted upgradation under ACP
scheme thrice prior to coming into force of
the ' Modified Assured Career Progression
Scheme (MACPS)' and in the very nature
of
the
said
scheme,
any
financial
upgradation
would
have
been
made
available only if there was stagnation on
any
post
without
such
promotion/upgradation and the benefits
which were admissible thereunder were in
the form of three financial upgradation
depending
upon
how
many
promotions/upgradations
have
been
made/given. In the case at hand, all the
respondents
had
already
been
promoted/granted
upgradation
thrice,
therefore, there was no application of the
'MACPS', yet erroneously the benefit of
financial upgradation was extended to them
vide order dated 26.07.2010 and other
orders, however, as already noticed, the
appellants herein were cautious enough to
520 INDIAN LAW REPORTS ALLAHABAD SERIES
incorporate a condition therein that the pay
fixation consequent to grant of such
financial upgradation was subject to post
audit and in light of audit objection, over
payment, if any, shall be recovered from
the officials in one lump sum and that it
was being extended to the respondents
subject to the said condition. They are
bound by it as they have never challenged
the said order nor the said condition. Now
in the light of the said condition, the Audit
and Account Section raised an objection
that there was over payment on account of
erroneous
grant
of
3rd
financial
upgradation whereas all the officers had
already availed three promotions and,
therefore, the benefit was not available,
accordingly, recovery was suggested so
that the pension paper could be finalized.
This audit objection was raised before
retirement of the respondents except in the
case of Amit Kumar Arora (Writ-A
No.7231 of 2024) and was in terms of the
condition already referred hereinabove.
Most important, all the respondents,
submitted separate applications to the
higher officials for finalizing their pension
taking into consideration these audit
objections, therefore, this also while
submitting
such
representation,
they
acceded to the objections raised by the
audit department and cannot resile from the
same.

(14) If the order dated 26.07.2010 and
other similar orders were not on record of
the Tribunal then not only the petitioners
but also the respondents have to offer an
explanation as to why they did not bring it
on record because under this very order the
benefit was extended to them. In any case,
all these documents have been filed along
with the supplementary affidavit before this
Court, a copy of which was served upon the
counsel for the respondents but till date no
response has been filed to the same nor
these documents have been denied. These
are official documents and there is no
reason for us to disbelieve the same.

(15) In these cases at hand, there is
one exception on facts, i.e., in Writ-A
No.7231 of 2024, wherein, the respondent-
Anil Kumar Arora retired on 31.08.2015
and the refixation of pay was done
subsequent to his retirement, however, this
does not make any difference as the
condition contained in the order dated
17.08.2011 was already existing and he
was bound by the same. Moreover, he had
also
submitted
an
application
dated
21.10.2015 for finalizing his pension after
taking
into
consideration
the
audit
objection dated 06.10.2015.

(16) In view of the aforesaid
discussions, the judgment relied upon by the
counsel for the respondents in Jagdish
Prasad Singh (supra) and Rafiq Masih
(supra) are not attracted rather the exception
to Rafiq Masih (supra) as carved out in the
case of Jagdev Singh (supra) is squarely
applicable. The respondents had notice of the
fact that, if any, excess payment is made, the
same
would
be
liable
to
be
recovered/refunded.
Moreover,
they
themselves submitted an application that their
pension
be
fixed
after
taking
into
consideration the audit objections raised on
17.05.2016 and other orders that too, except
in one case, prior to their retirement,
therefore, we are of the opinion that the
Tribunal's judgment which is impugned
herein cannot be sustained. The excess
payment had already been recovered prior to
filing of the Original Applications. The same
has not be refunded as yet.

(17) The impugned judgments are
quashed in all the petitions. The Original
9 All. Arvind Kumar Nirmal Vs. State of U.P. & Anr.
521
Applications are dismissed. Petitions are
allowed.
----------
(2024) 9 ILRA 521
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 6533 of 2024

Arvind Kumar Nirmal ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner
Anupras Singh

Counsel for the Respondents:
C.S.C., Naresh Chandra Mohan

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - GO
dated 17.09.2023 - Post of Chief Engineer
(Civil)
-
Departmental
promotion
-
Deduction was made in bench marks on
account
of
warning
issued
by
the
Managing Director and minor penalty - GO
dated
17.09.2023
provide
that
only
warnings issued by the St. Government
(Shasan) shall be taken into consideration
- Effect - Held, opposite parties have
erred in deducting marks obtained by
petitioner on account of warning issued by
the Corporation. (Para 26)

B. Service Law - Post of Chief Engineer
(Civil) - Promotion - Adverse entry prior
to
earlier
promotion
-
Effect
on
subsequent promotion - Doctrine of
Washing off - Applicability - Babu Lal
Jangir's
case
relied
upon
-
After
promotion of an employee, adverse
entries prior thereto would have no
relevance and can be treated as washed
off when the Government employee is to
be considered for further promotion -
Held, opposite parties have erred in
declaring to petitioner unsuitable for
promotion on the post of Chief Engineer
(Civil). (Para 27, 28 and 30)

C.
Service
law
-
Constitution
of
India,1950 - Schedule VII to Article 246 -
Sovereign power of St. - UP Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 2 (j) - Service - Government
Corporation,
whether
come
within
definition of St. Government - Held, the
provision also clearly indicates as to when
a
Corporation
registered
under
the
Companies Act can be deemed to be a
Government Corporation but still does not
indicate
that
any
such
Government
Corporation would come within definition of
the St. Government of Uttar Pradesh or that
the employees or Managing Director of any
such
Government
Corporation
can
be
included to mean service and post in
connection with the affairs of St. of Uttar
Pradesh,
which
clearly
would
involve
exercise of sovereign powers of St. as per
Schedule
VII
to
Article
246
of
the
Constitution of India - Managing Director of
the Corporation would not come within
definition of St. (Shasan). (Para 23 and 24)

Writ allowed. (E-1)

List of Cases cited:

Rajasthan St. Road Transport Corporation & ors.
Vs Babu Lal Jangir; (2013) 10 SCC 551

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. J.N. Mathur, learned
senior counsel assisted by Mr. Anupras
Singh, learned counsel for petitioner,
learned State Counsel for opposite parties
no. 1 & 2 and Mr. N.C. Mehrotra, learned
counsel for opposite parties no. 3 & 4.

2. Counter affidavit filedtoday on behalf
of opposite party no. 1 is taken on record.

3. Learned counsel for petitioner on
the basis of instructions submits that