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Allahabad High Court · body

2014 DIGILAW 94 (ALL)

Himanshu Tiwari v. Union of India

2014-01-09

ARUN TANDON, SURYA PRAKASH KESARWANI

body2014
JUDGMENT Arun Tandon and Surya Prakash Kesarwani,JJ. Heard Sri Keshari Nath Tripathi, Senior Advocate on behalf of the petitioner, Sri Gopal Tripathi, learned Counsel on behalf of respondents no. 2 to 4. 2. The petitioner before this Court seeks quashing of the order dated 7.5.2012 as communicated under letter dated 17.5.2012 of the Assistant Registrar, Account with the approval of the Vice Chancellor of the Allahabad University dated 20.1.2012. The petitioner has also prayed for a writ of mandamus directing the respondents to provide benefit of pay and designation etc. of Lecturer to the petitioner since the initial date of appointment i.e. 5.8.1977. 3. The petitioner before this Court claims to have been appointed as Instructor in the Department of Photography of the University of Allahabad on 5.8.1977 and his salary as Instructor in Photography was paid in terms of the resolution no.5 dated 2.1.1984 passed by the Executive Council of the University of Allahabad. The order issued by the Registrar of the University in that regard has been enclosed as Annexure-2 to the writ petition. It is then stated that on the recommendation of the Selection Committee, the petitioner was appointed as a permanent Instructor in the Photography Department under order of the Vice Chancellor on 14.1.1984. 4. The petitioner along with three other persons namely, P.K.Mallik, S.K.Mishra and Vidyadhar Mishra filed Civil Misc. Writ Petition No. 7283 of 1986 claiming payment of salary and other benefits of the post of Lecturer. In the said writ petition, an interim order was passed by this Court on 9.3.1986 directing, payment of salary of the petitioner to the petitioner on the conditions mentioned therein. In terms of the interim order of the Hon'ble High court, the petitioner was paid salary as Lecturer. The Registrar of the University vide order dated 27.9.1986 fixed the salary of the petitioner in the pay scale of Lecturer. The salary of the petitioner was refixed on appointment as a Senior Lecturer under Government Order dated 7.1.1989, w.e.f. 1.1.1986 by the Registrar vide order dated 13.8.1994. It is stated in paragraph no. that the petitioner was placed in the scale of Reader under personal promotion scheme w.e.f. 5.7.1993 in the light of the Government Order dated 7.1.1989 as communicated by the Registrar of the University vide letter no. 1418 dated 13.6.1994. 5. It is stated in paragraph no. that the petitioner was placed in the scale of Reader under personal promotion scheme w.e.f. 5.7.1993 in the light of the Government Order dated 7.1.1989 as communicated by the Registrar of the University vide letter no. 1418 dated 13.6.1994. 5. It is stated in paragraph 11 of the writ petition that during the pendency of the said writ petition a Government Order dated 17.10.1998 was issued which provided for the benefit of pay and post of Lecturer being given to the Instructors working in various Department of Universities. The Executive Council of the University decided to give benefit of the said G.O. to the Instructor from the date of initial appointment. 6. Writ Petition No. 7283 of 1986 came to be disposed of vide judgment dated 30.4.2007 and the interim order has merged in the final judgment. 7. The petitioner accordingly, made a representation dated 13.8.2007 for benefit of the G.O. dated 17.10.1998 and forwarded repeated reminders but the respondent authorities did not consider his claim within the time allowed. In paragraphs 15 to 20 of the present writ petition, the petitioner has made reference to various judgments said to be made in the case of instructors. 8. In paragraph 21 of the writ petition It is stated that the petitioner was surprised to receive the decision of the Vice Chancellor as communicated by the Registrar vide order dated 24.10.2009 retiring the petitioner on attaining the age of 60 years. This order of retirement was subjected to challenge by the petitioner by filing Writ Petition No. 58811 of 2009. In the said writ petition, he also prayed for payment of salary as Lecturer since the date of his initial appointment as Instructor with all consequential benefits (Reference paragraph 22 of the writ petition). This writ petition was allowed vide judgment dated 14.12.2009. The respondents were directed to permit the petitioner to continue in service treating him to be a Lecturer. No other relief was granted. The petitioner has been given benefit of designation and pay scale of Lecturer under order of the Registrar dated 25.1.2011. In the said order the date from which such benefit are to be made applicable to the petitioner has not been disclosed. The petitioner made a representation, which has not been considered . 9. No other relief was granted. The petitioner has been given benefit of designation and pay scale of Lecturer under order of the Registrar dated 25.1.2011. In the said order the date from which such benefit are to be made applicable to the petitioner has not been disclosed. The petitioner made a representation, which has not been considered . 9. It is stated that the Finance Officer of the University of Allahabad has however, calculated certain amount as excess paid to the petitioner. A show cause notice was issued to the petitioner calling upon him to re-pay the money said to be excess paid. The petitioner submitted a reply. In paragraph 32, it has been stated that the deduction from the salary of the petitioner has been since January, 2012 in terms of the order referred above. In response to the representation made by the petitioner, he has been informed by the University that the recovery has been made in pursuance to the order dated 7.5.2012 with the approval of the Vice Chancellor. The communication dated 7.5.2012 is under challenge in the present writ petition. It is the case of the petitioner that on one hand, his entitlement to the date from which designation and pay scale of Lecturer has not been decided despite the order of the Hon'ble High Court, on the other the respondents are proceeding to recover money said to have been paid to the petitioner in excess. 10. On behalf of the University, it is pointed out that salary of the petitioner was fixed in the pay scale of Rs. 700 - 1800 under an order of the Deputy Registrar on 27.9.1986 with reference to the order of the Hon'ble High Court, a copy of which has been filed as Annexure 5 to the writ petition with the specific condition that in case the writ petition is dismissed, the petitioner shall refund the money within one month from the date of dismissal of the writ petition. It is also stated that in the interim order passed by the High Court in Writ Petition No. 7283 of 1986, the direction to make the payment of salary of Lecturers grade to the petitioner was made on the condition that he shall give an undertaking to the University that if the writ petition is finally dismissed, he shall refund the amount within one month. 11. 11. It is also submitted that writ petition has finally been decided under the judgment dated 30.4.2007 and the only direction issued is that the claim of the petitioner of the be considered in accordance with the provisions of Government Order dated 17.10.1998 where under the Instructors working in State Universities have been directed to be designated as Lecturers with all consequential benefits provided they possess the requisite qualifications prescribed for the post of Lecturer. 12. The Division Bench has specifically recorded that such designation of Lecturer under the Government Order is to be granted from the date of issuance of the said Government Order. This order has become final between the parties. 13. It is further explained that in Writ Petition No. 5811 of 2009, the petitioner had made a prayer for grant of Lecturers' pay scale from the date of his initial appointment. While deciding the writ petition, the Court did not grant the said prayer and the only relief granted was that the petitioner be treated as a Lecturer and be retired on attaining the age of retirement fixed for Lecturers, meaning thereby that the relief for grant of Lecturers' pay scale from the date of initial appointment was not granted by the High Court.. It is submitted that the controversy in that regard, therefore, stands concluded against the petitioner. 14. With reference to the order dated 25.1.2011, learned counsel for the university points out that the claim of the petitioner has been considered and it has been decided to grant the pay scale and designation of Lecturer to Sri Himanshu Tiwari (petitioner) in terms of the Government Order dated 17.10.1998. It is also pointed out that this order is not a subject of challenge. 15. Learned counsel for the university points out that another order was passed by the university on 13.6.1994 with reference to the order of the Hon'ble High Court dated 3.3.1994 made in Writ Petition No. 5327 of 1982 granting the pay scale of Reader under personal promotion scheme to the petitioner w.e.f. 5.7.1993 with the condition that in case the decision of the High court goes against the petitioner, than benefit shall be discontinued. This order was vitiated on the ground of the fraud inasmuch as the petitioner was not a party in Writ Petition No. 5327 of 1982 and even otherwise the writ petition was dismissed by the Hon'ble High Court vide judgment and order dated 9.5.1986 and the Special Appeal No. 1833 of 1996 against the same was dismissed on 23.9.1996. 16. It is with respect to these facts that a show cause notice was issued to the petitioner calling upon him to explain as to why the excess salary of the post of Reader availed of by him be not recovered. 17. The notice dated 8.11.2010, which is annexed as Annexure 16 to the present writ petition and the reply given thereto by the petitioner dated 15.11.2010 is annexed as Annexure 17 to the present writ petition wherein none of the facts mentioned in the show cause notice have been questioned and the only reply given is that the claim of the petitioner, as per the judgment dated 14.12.2009 made in Writ Petition No. 58811 of 2009 has not been considered. The counsel submits that the present writ petition is wholly misconceived an attempt to retain the illegal benefit obtained by this representation. 18. In rejoinder, Sri Keshari Nath Tripathi, learned counsel submitted that the respondents are under legal obligation to disclose the date from which the petitioner is entitled to the designation and pay scale of Lecturer and for consequential benefits being provided to the petitioner in terms of the Government Order dated 17.10.1998 and till such time his claim is not considered, the authority cannot enforce recovery. 19. We heard the learned counsel for the parties and examined records. From the facts of the case, which have been stated above, it is abundantly clear that the petitioner was appointed as an Instructor in the Photography Department of the University of Allahabad in the year 1977.He along with three other persons filed Writ Petition No. 7283 of 1986 claiming designation and pay scale of Lecturer. In the said writ petition, an interim order was passed by the High court on 23.9.1986, which reads as under : "In spite of time having been granted by the Bench on August 20,1986 no counteraffidavit has been filed. In the said writ petition, an interim order was passed by the High court on 23.9.1986, which reads as under : "In spite of time having been granted by the Bench on August 20,1986 no counteraffidavit has been filed. Heard counsel for the petitioner, I direct respondent no.1 University of Allahabad to pay the salary payable to a lecturer of the University to the petitioners on giving an udnertaking by them that in case the petition fails, they will refund the amount within one month from the date of the dismissal of the writ petition. A copy of this order may be supplied to the learned counsel for the petitioner today on payment of usual charges." 21. In pursuance to the above interim order the University issued an order granting the pay scale of Rs. 700-1800 in favour of the petitioner w.e.f. 23.9.1986 with the specific stipulation that in case the writ petition is rejected, the petitioner will refund the amount within one month from date of dismissal of the writ petition. The order is quoted herein below : "University of Allahabad No. 2445 Dt. 27/29 September 1986 Office Order As per order of Hon'ble High Court, the salary of the following persons have been fixed in the pay scale of Rs. 700-1800 from September 23, 1986 subject to the condition that in case their petition is rejected, they will refund the amount within one month from the date of dismissal of writ petition. Name of teachers 1- Sri P.K.Malik Music Department 2- Sri S.K.Mishra Music Department 3- Sri Vidyadhar Prasad Mishra Music Department 4- Sri Himanshu Tiwari Photography Sd. Illegible Dy. Registrar" 22. It is not in dispute that when the said writ petition itself was pending before the High Court and the entitlement of the petitioner for payment of salary as Lecturer Grade itself was under consideration, an order issued on 13.6.1994 granting the pay scale of Reader to the petitioner by the University. This order has made with reference to an interim order of the High Court dated 3.3.1994 passed in Writ Petition No. 5327 of 1982. The order of the University dated 13.6.1994 is quoted herein below : "University of Allahabad No. 1418 13.6.1994 Himanshu Tiwari In-Charge, Photography University of Allahabad As per interim order of Hon'ble High court dated 3.3.1994 on Writ Petition no. The order of the University dated 13.6.1994 is quoted herein below : "University of Allahabad No. 1418 13.6.1994 Himanshu Tiwari In-Charge, Photography University of Allahabad As per interim order of Hon'ble High court dated 3.3.1994 on Writ Petition no. 5327 of 1982, the Vice Chancellor has been pleased to place you in the scale of Reader under personal promotion scheme i.e., in the grade of Rs. 3700/- 5700/- w.e.f. 5.7.1993 under provision of G.O.dated 1.1.1989. In case Hon'ble High Court final decision is against you this shall be however discontinued. You are requested to Kindly send your acceptance through Head of the department for record. Yours Faithfully (R. P. Singh) Registrar" 23. It has not been disputed by the counsel for the petitioner that Himanshu Tiwari, the petitioner was not a party in the Writ Petition No. 5327 of 1982. It is also not in dispute before this Court that Writ Petition No. 5327 of 1982 had been dismissed by the High Court vide order dated 9.5.1986 and the Special Appeal No. 18333 of 1996 filed against the said order has also been dismissed. 24. In terms of the order of the Registrar of Allahabad University dated 13.6.1994 with the dismissal of Writ Petition No.5327 of 1982 read with the petitioner is legally bound to return the money, which he has drawn thereunder. 25. We may record that in the show cause notice, which was issued to the petitioner by the University of Allahabad dated 8.11.2010, the aforesaid facts are specifically mentioned for the purposes of recovery of the excess paid to the petitioner in the Readers' pay scale. The reply submitted by the petitioner to the said show cause notice, which has been annexed as Annexure 17 to the writ petition, is in fact no reply to the allegation. The petitioner was a party to the Writ Petition No. 5327 of 1982 nor he disputed that the writ petition was dismissed on 9.5.1996 and the Special Appeal filed against the same had also been dismissed on 23.9.1996. 26. Therefore, on the admitted facts it is clear that the payment of the Readers' pay scale to the petitioner was dependent on the outcome of the Writ Petition No.5327 of 1982. Once the writ petition has been dismissed, the petitioner is under legal obligation to return the money which had been paid to him in the Readers' pay scale. 27. Therefore, on the admitted facts it is clear that the payment of the Readers' pay scale to the petitioner was dependent on the outcome of the Writ Petition No.5327 of 1982. Once the writ petition has been dismissed, the petitioner is under legal obligation to return the money which had been paid to him in the Readers' pay scale. 27. We therefore find no good reason to interfere with the recovery, which has been undertaken against the petitioner. We may refer to the latest judgment of the Apex Court in the case of Chandi Prasad Uniyal v. State of Uttarakhand (2012) 8 SCC 417 , in which it has been held that not only excess salary paid because of fraud or misrepresentation is recoverable but also wrongful payment of salary in excess than that due is also recoverable. 28. In view of findings recorded above, we are of the view that recovery proceeding initiated by the University of Allahabad under the order impugned do not warrant any interference. The recovery may be enforced accordingly. 29. So far as the claim of the petitioner for grant of Lecturers' pay scale from the date of initial appointment is concerned, we may recall that this was the specific prayer made by the petitioner in his first Writ Petition No. 7283 of 1986. This Court had clarified vide order dated 30.4.2007 that under Government Order dated 7.1.1986 the Instructors working in the state Universities possessing requisite qualification prescribed for Lecturers be allowed designation and pay scale of Lecturer from the date of issuance of the said Government Order, meaning thereby that the Lecturer's pay scale and designation cannot be granted from any date prior to the issuance of the Government Orders. The order dated 30.4.2007 has become final between the parties. In the second Writ Petition No. 58811 of 2009, again the similar prayer was made by the petitioner being prayer no.2 but this prayer has not been granted by the High Court while deciding the said writ petition on 14.12.2009. Therefore, the only issue which remains to be decided is as to when the petitioner has acquired the minimum qualification as Lecturer and becomes entitled for the post of Lecturer and pay scale admissible to him in terms of the Government Order dated 7.1.1986. Therefore, the only issue which remains to be decided is as to when the petitioner has acquired the minimum qualification as Lecturer and becomes entitled for the post of Lecturer and pay scale admissible to him in terms of the Government Order dated 7.1.1986. For the said purpose only, we direct the University of Allahabad to consider the grievance of the petitioner and to clarify the date (which in no case can be prior to the date of the Government Order i.e. 7.1.1986) having regard to the provisions of Government Order dated 7.1.1986 for the purpose. All consequential action be taken accordingly. 30. The writ petition is dismissed subject to the observations made above.