Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2284 (ALL)

JAI SHREE DEVI YADAVA v. STATE OF U. P.

2013-09-12

ARUN TANDON

body2013
Arun Tandon, J.:- 1. Petitioner before this Court seeks quashing of the order dated 5.02.2011 passed by Director of Secondary Education and consequential orders dated 12.12.2011, 14.12.2011 as also a writ of mandamus directing the respondents to not recover the alleged excess salary of Rs. 3,74,534/-. Initially, the learned counsel for the petitioner made an attempt to challenge the order on merits. However, he has confined the challenge to the aforesaid orders only on the ground of violation of principles of natural justice. It is his case that the order dated 5.12.2011 and consequential orders mentioned above have been made without notice and opportunity of hearing to the petitioner. The orders visit the petitioner with evil civil consequences i.e. recovery of money and, therefore, the minimum required was that the petitioner should have been heard before any action adverse could be taken. 2. Learned Standing Counsel on behalf of respondents supports the order on merits. However, he submits that this Court may require the Secretary of Education Department to examine as to whether any excess salary had been paid to the petitioner or not, after affording opportunity to the petitioner. 3. I have heard counsel for the parties and examined the record of present petition. 4. The Apex Court in the case of Chandi Prasad Uniyal and others v. State of Uttrakhand and others reported in ( 2012) 8 SCC 417 : ( AIR 2012 SC 2951 ) in paragraph 16 has held as follows: "16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected overpayment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment." 5. The issue remains as to whether in the facts of the case any excess salary has been paid to the petitioner and if so, what is the quantum of said excess payment for recovery in view of the judgment of Chandi Prasad Uniyal ( AIR 2012 SC 2951 ) ( supra). For both aforesaid issues to be examined, it is necessary that the petitioner may be heard. In view of the aforesaid the writ petition is disposed of by providing that the petitioner may represent her grievances against the order of Direction of Education dated 5.12.2011 as well as against the consequential orders issued by the District Inspector of School before respondent No. 1, the Secretary of Secondary Education within four weeks from today along with all such documents that she may be advised. The Secretary shall summon the records from the Office of District Inspector of School and after providing opportunity to the petitioner decide both the aforesaid issues by means of a reasoned order. The said exercise shall be completed within two months of the representation being filed by the petitioner. For a period of three months from today, the orders impugned shall remain in abeyance. All appropriate actions shall be taken in terms of the order to be passed by the Secretary immediately thereafter.