Sahab Saran vs State of U.P. and Others

Devi Prasad Singh, J.—Heard learned Counsel for the parties.

Instant writ petition under Article 226 of the Constitution of India has been filed against the decision taken to recover the amount paid to the petitioner in higher grade.

It has been submitted that revised pay scale was given to the petitioner from 1.1.1996. In the meantime, adverse entry was awarded to the petitioner in the year 1994-95. On account of adverse entry granted to the petitioner, he was not entitled for higher pay scale from 1.1.1996. According to the impugned order, higher pay scale should be given to the petitioner after five years of continuous service i.e. from 1997.

While assailing the impugned order, learned Counsel for the petitioner raised two fold arguments. Firstly, in case revised higher pay scale was paid to the petitioner, he cannot be held responsible for it. Accordingly, the respondents have got no right to recover the amount paid to him. The other submission is that the adverse entry awarded to him in the year 1994-95 has been expunged.

While filing the counter affidavit the respondents themselves have pleaded that the entry awarded to the petitioner in the year 1994-95 cannot be termed as adverse entry. The pleadings contained in paragraphs 5 and 11 of the counter affidavit are reproduced as under:

That the contents of paragraph 3 of the writ petition as stated are not admitted. It is submitted that the selection grade to the petitioner had been granted w.e.f. 14.1.1992 and on the said pay scale the increments were being given and on that basis the promotional pay scale (1350-2200) was due after 4 years on 1.1.1996 which was ought to have been granted, to the petitioner and has been granted by the Sub-Divisional Magistrate, f Ramnagar vide his order dated 7.7.1997. The Audit team has raised objection with regard to the fact that the adverse entry was awarded for the year 1994-95 and disciplinary proceedings were initiated w.e.f. 22.8.1997 and the order giving adverse entry for the year 1994-95 was awarded to the petitioner vide order dated 4.11.1997 and the departmental proceedings were completed and the petitioner was exonerated with the warning to the petitioner to be conscious towards orders or directions of the department in future which amply clear that the adverse entry was effective after 7.7.1997, the date on which the promotion pay scale was granted to the petitioner. It is further submitted that for the year 1997-98 the petitioner was awarded annual character roll "Uttam" and integrity was certified which itself makes clear that the adverse entry awarded becomes ineffective after departmental proceedings. So far as the entry for the year 1994-95 is concerned, the same was awarded as "Satisfactory Work" and integrity was certified apart from the entry "Rastriya Karkramon Mein Sahyog Naganya" ("The co-operation in national programmes ''Zero'') which does not come in the category of adverse entry''....

That in reply to the contents of paragraph 9 of the writ petition it is submitted that the selection grade to the petitioner had been granted w.e.f. 14.1.1992 and on the said pay scale the increments were being given and on that basis the promotional pay scale (1350-2200) was due after 4 years on 1.1.1996 which was ought to have been granted to the petitioner and has been granted by the Sub-Divisional Magistrate, Ramnagar vide his order dated 7.7.1997. The Audit team has raised objection with regard to the fact that the adverse entry was awarded for the year 1994-95 and disciplinary proceeding were initiated w.e.f. 22.8.1997 and the order giving adverse entry for lite year 1994-95 was awarded to the petitioner vide order dated 4.11.1997 and the departmental proceedings were completed and the petitioner was exonerated with the warning to the petitioner to be conscious towards orders or directions of the department in future which amply clear that the adverse entry was effective after 7.7.1.997, the date on which the promotion pay scale was granted to the petitioner. It is further submitted that for the year 1997-98 the petitioner was awarded annual character roll "Uttam" and integrity was certified which itself makes clear that the adverse entry awarded becomes ineffective after departmental proceedings. So far as the entry for the; year 1994-95 is concerned, the same was awarded as "Satisfactory Work" and integrity was certified apart Iron; the entry "Rasiriya ikarkramon Mein Sahyog Naganya" ("The co-operation in National Programmes ''Zero'') which does not come in the category of "adverse entry."

In view above pleadings contained in paragraphs 5 and 11 of the counter affidavit, it appears that impugned order has been passed without application of mind on unfounded grounds. Moreover, it is also settled proposition of law that in case the higher pay scale is paid to the government employee on no fault on his part, the Government shall not be entitled to recover the amount paid to the employee vide P.H. Reddy and Others Vs. N.T.R.D. and Others, Sahib Ram Vs. State of Haryana and Others, and Bindeshwari Sahai Srivastava v. The Chief Engineer Irrigation Department. U.P. and Ors. 1996 (74) FLR 2127 (Alld.).

In view of settled proposition of law, the recovery of the amount from the petitioner is not sustainable under law.

Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 22.9.2001 (Annexure No. 1 to the writ petition) with consequential benefits. The amount already recovered from the petitioner shall be refunded to him forthwith. No order as to costs.