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2010 DIGILAW 854 (ALL)

Samsuddin Khan v. State Of U. P.

2010-03-15

A.P.SAHI

body2010
JUDGMENT Hon'ble Amreshwar Pratap Sahi,J. Heard learned counsel for the petitioners and the learned standing counsel for the respondents. 2. The petitioners are Amins in the Public Works Department posted at Varanasi. They have prayed for quashing of the orders dated 15.01.2002 and 22.01.2002 whereby they have been called upon to deposit the amount of excess payment made to them due to an incorrect application of the pay scale under the circular dated 08.11.1993 of the Chief Engineer, Public Works Department, Uttar Pradesh. 3. The petitioners contend that the recovery and the impugned orders both are erroneous, inasmuch as, there was no fault on the part of the petitioners and even otherwise the fixation which was made under the circular dated 08.11.1993 was based upon the Government Order dated 30.12.1989 which in turn was founded on the report of the Equivalence Committee dated 08.12.1989. The petitioners allege that the impugned orders were passed without any notice or opportunity and, therefore, it was in violation of principles of natural justice. 4. A counter affidavit has been filed on behalf of the respondent-State and it has been submitted that the circular issued by the Chief Engineer dated 8th November, 1993 was founded on a misinterpretation and misconstruction of the Government Order referred to therein and further the said circular has been cancelled subsequently. The submission of the learned standing counsel is that an erroneous fixation of pay can always be corrected and the recovery on the strength thereof cannot be said to be against law. 5. I have heard learned counsel for the parties and have also perused the judgments, which have been brought on record through a rejoinder affidavit. It has been held in those decisions that until and unless there is any fraud on the part of the petitioners or there has been any misrepresentation then only recovery can be made or else the Government has no right to make any such recovery. However, in the decision of Badri Prasad and another Vs. State of U.P. and others, which is annexure RA-2 to the rejoinder affidavit, this Court set aside the order as being in violation of principles of natural justice leaving it open to the State Government to adjudicate finally as to whether such entitlement is availed to the petitioners or not. 6. State of U.P. and others, which is annexure RA-2 to the rejoinder affidavit, this Court set aside the order as being in violation of principles of natural justice leaving it open to the State Government to adjudicate finally as to whether such entitlement is availed to the petitioners or not. 6. The Government Order dated 08.12.1989 whereby the said pay scale revision has been brought into force indicates the post of Amin/surveyor at serial number 51 and the pay scale is 825-1200. It is, therefore, evident that the pay scale of the Amin as revised under the Government Order was 825-1200 and not 950-1500. This incorrect pay scale continued to be paid to the petitioners for a very long period of time. It is only when the impugned order was issued indicating that previously letters had been issued on 14.03.2000 and 11.07.2001 that the corrections should be forthwith carried out on the strength of the said order of the Superintending Engineer dated 15.01.2002. The Executive Engineer accordingly ordered for recovery of the excess amount, which was paid to the petitioners. 7. From the facts as disclosed in the counter affidavit, it is stands admitted by the respondents that the said incorrect fixation of pay scale in the year 1993 was allegedly withdrawn in the year 2001. It is also admitted in the counter affidavit that the payment had been made on account of misinterpretation and misconstruction of the Government Order, which had brought about the change in the pay scale. Thus, there was no fault on the part of the petitioners and it was on account of the mistake of the respondents that the said pay scale was made admissible to the petitioners. 8. However, the Government Order does not confer any such benefit of pay scale which is being claimed by the petitioners. Learned counsel for the petitioner contends that the Government Order dated 30.12.1989 clarifies the position that the pay scale of 950 to1500 shall be available to such posts, which are mentioned at Sl. Nos. 46, 47, 48 and 53 and all such posts which are equivalent thereto. Learned counsel for the petitioner contends that if such posts have to receive the revised pay scale of 950-1500, then the petitioners who are Amins and were getting the same pay scale, should also be given the pay scale 950-1500. 9. Nos. 46, 47, 48 and 53 and all such posts which are equivalent thereto. Learned counsel for the petitioner contends that if such posts have to receive the revised pay scale of 950-1500, then the petitioners who are Amins and were getting the same pay scale, should also be given the pay scale 950-1500. 9. I have carefully perused the Government Order dated 30.12.1989, which recites that the said pay scale would be admissible to the posts mentioned at sl. nos. 46, 47, 48 and 53, which are the posts of Roller Driver, Truck Driver, Jeep Driver and Tractor/Tanker Driver. It is in the said context that the word similar posts have been issued in the said Government Order. The contention of the petitioners is that similar posts means posts carrying similar pay scale does not appeal to reason, inasmuch as, the Government Order has to be read ejusdem generis to the posts as defined at Sl. Nos. 46, 47, 48 and 53. The posts which have been mentioned in the aforesaid serial numbers are all posts of drivers. The similarity of such pay scale therefore has to be given to those persons, who are holding the posts of drivers, whether they are Roller drivers or any other drivers. The Government Order does not extend the benefit to all such posts even if they were not posts of drivers and, therefore, the argument raised on behalf of the petitioners to that extent cannot be accepted. The Chief Engineer committed a patent error by issuing the circular dated 08.11.1993 and extend the said benefit to the Amins as well. It is the aforesaid error, which has been corrected by the State Government and, therefore, it cannot be said that the impugned orders are patently and entirely illegal. 10. In view of the aforesaid findings, it is evident that the fixation of the salary of the petitioners was incorrectly mentioned on the strength of the incorrect circular and, therefore, the department concerned was fully justified in re-fixing the pay scale of the petitioners in the scale of 825-1200. 11. The contention of the learned counsel for the petitioner is that no recovery could have been made and the orders have been passed in violation of principles of natural justice as such the same are liable to be set aside. 12. 11. The contention of the learned counsel for the petitioner is that no recovery could have been made and the orders have been passed in violation of principles of natural justice as such the same are liable to be set aside. 12. It is correct that in view of the law laid down by the Apex Court in a series of decisions, which has also been followed in the case of State of Jammu and Kashmir Vs. Pirzada Ghulam Nabi reported in JT 1998 (9) SC 129, the recovery, which was not on account of any default on the part of the petitioner,? could have not been made. The recovery, therefore, as directed under the impugned order was impermissible in law. The writ petition therefore has to succeed on this count that the recovery from the petitioners could not have been made. So far as, the fixation part is concerned, the same has to be sustained in view of the reasons given herein above. This Court had called upon the respondents to file a counter affidavit and no interim orders had been passed. 13. However in view of the findings recorded herein above, the writ petition is partly allowed and the orders impugned dated 15.01.2000 and 22.01.2000, insofar they direct recovery from the petitioners is set aside. The respondents shall reimburse the said amount in case they have recovered it as a consequence to the passing of the impugned order. So far as, the correct fixation is concerned, the impugned orders are upheld. 14. The writ petition is disposed of.