Budhi Ram vs State of U.P. and others

Sanjay Misra, J.—Heard learned Counsel for the petitioner and learned Standing Counsel for the respondents.

Counter and rejoinder affidavit have been exchanged.

The petitioner has amended this writ petition to assail the order dated 17.3.2006 whereby the representation of the petitioner has been rejected by the respondents in pursuance of an interim order passed by this Court to decide the representation during pendency of this writ petition.

The petitioner is also aggrieved by the order dated 20.5.2000 (Annexure No. 1 to the writ petition) passed by the Finance Controller, Medical and Health Department, U.P., Lucknow whereby a sum of Rs. 99,212\\ has been deducted from his pensionary benefits on the ground that it is the amount which has been paid to the petitioner in excess. According to learned Counsel for the petitioner, the impugned order dated 20.5.2000 and order dated 17.3.2006 are liable to be set aside inasmuch as the said deduction could not be made from the post retiral benefits of the petitioner since the pay scales paid to the petitioner were by virtue of a judgment dated 28.8.1989 passed by the U.P. Public Service Tribunal, Lucknow in Claim Petition No. 91/11/1986, Hari Ram Srivastava v. State of U.P. and another. In the said claim petition, the petitioner was applicant No. 2 and the claim petition was allowed by directing the respondents to give to the petitioners pay in the pay scale of Rs. 470735/ revised from time to time since the date of their entitlement with all consequential service benefits such as arrears of salary and allowances etc. According to learned Counsel for the petitioner, the said judgment of the Tribunal was executed by the petitioners and they were granted the aforesaid pay scales along with all arrears. Consequently, he submits that the deduction on the ground that pay scales were wrongly admitted to the petitioner cannot be made by the impugned order.

In the counteraffidavit filed by the respondents, it has been stated that the petitioner was not entitled to the pay scale of Rs. 470735/ inasmuch as entitlement of the pay scale was made by virtue of Government Order dated 25.3.1994 but subsequently the said Government Order was withdrawn by another Government Order dated 23.5.1995. Consequently, according to the respondents, the excess amount paid to the petitioner by way of pay scale was required to be deducted since the petitioner had retired on 31.12.1998.

A second counteraffidavit has been filed by the respondents against the amendment application made by the petitioner wherein he assailed the order dated 17.3.2006 by which the representation was rejected. In the aforesaid counteraffidavit, it has been stated that the selection grade of Rs. 470735/ w.e.f. 1.7.1982 and grade of Rs. 1350 to 2000 w.e.f. 1.7.1988 were not admissible to the petitioner since by the Government Order dated 23.5.1995 the pay scale of the petitioner was to be fixed at a lower grade i.e. Rs. 400625 w.e.f. 23.7.1981, Rs. 510675/ w.e.f. 1.7.1985, Rs. 13502200/w.e.f. 1.7.1991 and 45007000/ w.e.f. 1.1.1996. Learned Counsel for the respondents states that the petitioner was wrongly fixed in the selection grade w.e.f. 1.7,1982 and 1.7.1988 respectively. It has also been stated in the counteraffidavit (in para 7) that the said fixation of the pay scale of the petitioner was by way of mistake and the same has now been corrected by means of the impugned order dated 20.5.2000 and 17.3.2006.

Reliance has also been placed on the provision of Uttar Pradesh, Health Workers and Health Supervisors (Regulation of Pay) Act, 1996 to State that the petitioner who was a Basic Health Worker as clearly defined in Section 3 of the Act and hence it has been stated that the pay fixation of the petitioner made earlier was not admissible to him and therefore, recovery being made by the impugned order cannot be said to be illegal.

Having considered the submissions of learned Counsel for the parties and perused the record, the fact as admitted by the respondents is that the wrong pay scale was given to the petitioner by way of mistaken committed by the authorities. It is not their case that the petitioner made any false representation or misrepresentation and obtained the pay scale.

The Hon''ble Apex Court in the case of Shyam Babu Verma and others v. Union of India and others, 1994 (2) SCC 521, in para 11 of the judgment has observed:

"11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330480/ in terms of the recommendations of the Third Pay Commission w.e.f. January 1,1973 and only after the period of 10 years, they became entitled to pay scale of Rs. 330560/ but as they have received the scale of Rs. 330560/ since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 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."

The Hon''ble Apex Court in the case of Bhagwan Shukla v. Union of India and others, 1994 (6) SCC 154, has held that reduction of salary with retrospective effect cannot be made without giving any opportunity to the employee.

It has been seen in this case that when there is no misrepresentation or fraud committed by the petitioner then if the respondents have wrongly fixed the pay scale by their own mistake, the amount paid to the petitioner cannot be recovered from the petitioner.

This Court in the case of B. N. Singh v. State of U.P., reported in 1979 ALJ 184, has held as follows:

"It is well settled principle that wages paid to an employee by in employer voluntarily in bona fide manner without there being any element of fraud or misrepresentation, cannot be recovered from the employer subsequently merely on the ground that some mistake of interpretation of rules might have been committed by the employer for which the employee could not be held responsible."

A Division Bench of this Court in the case of Dr. Gopal Mishra v. State of U.P. and others, 2004 (2) ESC 791 (All.), has held that as there was no misrepresentation on the part of the petitioner or any fraud has been played by the petitioner, the amount so paid to the petitioner by the respondents cannot be recovered.

In State of U.P. and others v. State Public Services Tribunal, U.P., Lucknow and another, (2004) 1 UPLBEC 127, it has been held that pensionary benefits of an employee cannot be upheld after his retirement on the ground that promotional pay scale and selection grade was wrongly granted. If any State officials have wrongly fixed the salary it is upon the State to fix responsibility upon such official, but the petitioner cannot penalized for wrong acts of others.

A Division Bench of this Court in the case of Bindeshwari Sahai Srivastava v. Chief Engineer, Irrigation Department, U.P., Lucknow and others, 1996 (2) LBESR 225, held that when salary of employees has been fixed voluntarily by the employer without there being any fraud or misrepresentation on the part of the employee the employer could not recover any excess payment made to him during his service period after his retirement.

A Division Bench of this Court in the case of Ram Murthi Singh v. State of U.P. and others, (2006) 3 UPLBEC 2415, also in similar circumstances quashed the order or recovery of the excess amount.

In view of the aforesaid settled proposition of law when there is no misrepresentation or fraud on the part of the petitioner for fixing of his pay scale, then it cannot be said that the petitioner is liable to repay the same and respondents shall not deduct it from the pensionary benefits of the petitioner.

For the aforesaid reasons, the impugned order cannot be sustained. In so far as the refixation of the pay scale of the petitioner is concerned, no error can be found in the impugned order and therefore, pensionary benefits of the petitioner would be available in accordance with refixation of his pay scale. The impugned order dated 17.3.2006 and order dated 20.5.2000 are quashed. The amount sought to be deducted by the impugned order cannot be deducted and is liable to be paid to the petitioner. The writ petition is allowed. No order is passed as to costs. Petition allowed.